Commission of the European Communities v French Republic.
Date: 1997-12-09
24 In order to determine whether the Commission's action is well founded, it should be stressed from the outset that the free movement of goods is one of the fundamental principles of the Treaty.
29 That provision, taken in its context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to flows of imports in intra-Community trade.
30 As an indispensable instrument for the realization of a market without internal frontiers, Article 30 therefore does not prohibit solely measures emanating from the State which, in themselves, create restrictions on trade between Member States.  It also applies where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State.
31 The fact that a Member State abstains from taking action or, as the case may be, fails to adopt adequate measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private individuals on its territory aimed at products originating in other Member States is just as likely to obstruct intra-Community trade as is a positive act.
32 Article 30 therefore requires the Member States not merely themselves to abstain from adopting measures or engaging in conduct liable to constitute an obstacle to trade but also, when read with Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is respected on their territory.
33 In the latter context, the Member States, which retain exclusive competence as regards the maintenance of public order and the safeguarding of internal security, unquestionably enjoy a margin of discretion in determining what measures are most appropriate to eliminate barriers to the importation of products in a given situation.
36 It should be added that, by virtue of the combined provisions of Articles 38 to 46 and Article 7(7) of the EC Treaty, the foregoing considerations apply also to Council regulations on the common organization of the markets for the various agricultural products (see Joined Cases 3/76, 4/76 and 6/76 Kramer and Others [1976] ECR 1279, paragraphs 53 and 54, and Case C-228/91 Commission v Italy [1993] ECR I-2701, paragraph 11, relating to regulations on the common organization of the markets in fishery products).
38 The acts of violence committed in France and directed against agricultural products originating in other Member States, such as the interception of lorries transporting those products, the destruction of their loads and violence towards drivers, as well as threats to wholesalers and retailers and the damaging of goods on display, unquestionably create obstacles to intra-Community trade in those products.
39 It is therefore necessary to consider whether in the present case the French Government complied with its obligations under Article 30, in conjunction with Article 5, of the Treaty, by adopting adequate and appropriate measures to deal with actions by private individuals which create obstacles to the free movement of certain agricultural products.
40 It should be stressed that the Commission's written pleadings show that the incidents to which it objects in the present proceedings have taken place regularly for more than 10 years.
41 It was as long ago as 8 May 1985 that the Commission first sent a formal letter to the French Republic calling on it to adopt the preventive and penal measures necessary to put an end to acts of that kind.
42 Moreover, in the present case the Commission reminded the French Government on numerous occasions that Community law imposes an obligation to ensure de facto compliance with the principle of the free movement of goods by eliminating all restrictions on the freedom to trade in agricultural products from other Member States.
43 In the present case the French authorities therefore had ample time to adopt the measures necessary to ensure compliance with their obligations under Community law.
44 Moreover, notwithstanding the explanations given by the French Government, which claims that all possible measures were adopted in order to prevent the continuation of the violence and to prosecute and punish those responsible, it is a fact that, year after year, serious incidents have gravely jeopardized trade in agricultural products in France.
45 According to the summary of the facts submitted by the Commission, which is not contested by the French Government, there are particular periods of the year which are primarily concerned and there are places which are particularly vulnerable where incidents have occurred on several occasions during one and the same year.
46 Since 1993 acts of violence and vandalism have not been directed solely at the means of transport of agricultural products but have extended to the wholesale and retail sector for those products.
47 Further serious incidents of the same type also occurred in 1996 and 1997.
48 Moreover, it is not denied that when such incidents occurred the French police were either not present on the spot, despite the fact that in certain cases the competent authorities had been warned of the imminence of demonstrations by farmers, or did not intervene, even where they far outnumbered the perpetrators of the disturbances. Furthermore, the actions in question were not always rapid, surprise actions by demonstrators who then immediately took flight, since in certain cases the disruption continued for several hours.
49 Furthermore, it is undisputed that a number of acts of vandalism were filmed by television cameras, that the demonstrators' faces were often not covered and that the groups of farmers responsible for the violent demonstrations are known to the police.
50 Notwithstanding this, it is common ground that only a very small number of the persons who participated in those serious breaches of public order has been identified and prosecuted.
51 Thus, as regards the numerous acts of vandalism committed between April and August 1993, the French authorities have been able to cite only a single case of criminal prosecution.
52 In the light of all the foregoing factors, the Court, while not discounting the difficulties faced by the competent authorities in dealing with situations of the type in question in this case, cannot but find that, having regard to the frequency and seriousness of the incidents cited by the Commission, the measures adopted by the French Government were manifestly inadequate to ensure freedom of intra-Community trade in agricultural products on its territory by preventing and effectively dissuading the perpetrators of the offences in question from committing and repeating them.
53 That finding is all the more compelling since the damage and threats to which the Commission refers not only affect the importation into or transit in France of the products directly affected by the violent acts, but are also such as to create a climate of insecurity which has a deterrent effect on trade flows as a whole.
55 Apprehension of internal difficulties cannot justify a failure by a Member State to apply Community law correctly (see, to that effect, Case C-52/95 Commission v France [1995] ECR I-4443, paragraph 38).
56 It is for the Member State concerned, unless it can show that action on its part would have consequences for public order with which it could not cope by using the means at its disposal, to adopt all appropriate measures to guarantee the full scope and effect of Community law so as to ensure its proper implementation in the interests of all economic operators.
57 In the present case the French Government has adduced no concrete evidence proving the existence of a danger to public order with which it could not cope.
58 Moreover, although it is not impossible that the threat of serious disruption to public order may, in appropriate cases, justify non-intervention by the police, that argument can, on any view, be put forward only with respect to a specific incident and not, as in this case, in a general way covering all the incidents cited by the Commission.
62 It is settled case-law that economic grounds can never serve as justification for barriers prohibited by Article 30 of the Treaty (see, inter alia, Case 288/83 Commission v Ireland [1985] ECR 1761, paragraph 28).
63 As regards the suggestion by the French Government, in support of those arguments, that the destabilization of the French market for fruit and vegetables was brought about by unfair practices, and even infringements of Community law, by Spanish producers, it must be remembered that a Member State may not unilaterally adopt protective measures or conduct itself in such a way as to obviate any breach by another Member State of rules of Community law (see, to that effect, Case C-5/94 R v MAFF, ex parte Hedley Lomas [1996] ECR I-2553, paragraph 20).