Commission of the European Communities v Ireland.
Date: 1985-06-11
9 THE COMMISSION EMPHASIZES THAT THE IRISH ORDER IS FAR FROM BEING PURELY FORMAL BECAUSE IT EXPRESSLY PROHIBITS THE IMPORTATION OF POTATOES OTHERWISE THAN UNDER A LICENCE , BECAUSE IT IMPOSES SUBSTANTIAL PENALTIES FOR OFFENCES AGAINST IT AND BECAUSE IT APPLIES PERMANENTLY TO ALL POTATOES REGARDLESS OF THEIR ORIGIN .
10 IRELAND ADVANCES THE FOLLOWING ARGUMENTS IN DEFENCE OF THE CONTESTED MEASURE .

( A ) THE COMMISSION WAS MADE AWARE OF THE PROPOSAL TO ADOPT THE MEASURE IN QUESTION , GAVE ITS ' INFORMAL '  APPROVAL DURING AN ORAL EXCHANGE OF VIEWS AND DID NOT RAISE ANY OBJECTIONS WHEN THE CONTESTED ORDER WAS NOTIFIED TO IT ON 15 APRIL 1981 .
( B)THE COMMISSION HAS NOT PROVED THAT THE ORDER WAS APPLIED TO POTATOES WHICH WERE PROPERLY IN FREE CIRCULATION IN A MEMBER STATE . IN REALITY , THE POTATOES WERE IMPORTED DIRECTLY FROM A NON-MEMBER COUNTRY BUT ROUTED THROUGH THE TERRITORY OF ANOTHER MEMBER STATE .

( C)WITH REGARD TO THE SUBSTANCE OF THE PROBLEM , IRELAND REFERS TO THE UNCERTAINTIES INHERENT IN THE DONCKERWOLCKE JUDGMENT WITH REGARD TO THE SCOPE OF THE RULES CONCERNING FREE MOVEMENT OF GOODS ORIGINATING IN NON-MEMBER COUNTRIES . SINCE THIS CASE IS CONCERNED WITH AN AGRICULTURAL PRODUCT , THE SPECIAL RULES OF ARTICLES 39 TO 46 OF THE TREATY PREVAIL OVER THE GENERAL RULES RELATING TO FREE MOVEMENT OF GOODS WITH THE RESULT THAT THE PRINCIPLES RELATING TO FREE MOVEMENT ARE NOT APPLICABLE .

( D)IN PARTICULAR , IRELAND DRAWS ATTENTION TO THE RESTRICTION INHERENT IN THE TARIFF QUOTA ACCORDED TO CYPRUS FOR THE IMPORTATION OF NEW POTATOES AT REDUCED RATES OF DUTY . THAT QUOTA WAS INTENDED TO BE USED EXCLUSIVELY FOR IMPORTATION INTO THE UNITED KINGDOM . THE COMMISSION FAILED TO TAKE THE NECESSARY MEASURES TO PREVENT POTATOES IMPORTED WITHIN THE FRAMEWORK OF THAT QUOTA BEING RE-EXPORTED TO IRELAND . NO ACTION WAS TAKEN ON THE APPLICATION FOR SUCH MEASURES UNDER ARTICLE 115 WHICH WAS MADE FOLLOWING DELIVERY OF THE COMMISSION ' S REASONED OPINION . IRELAND CANNOT THEREFORE BE CRITICIZED FOR HAVING TAKEN UNILATERALLY THE MEASURES NECESSARY TO PROTECT ITS MARKETS .

( E)FINALLY , IRELAND CONTENDS THAT THE MEASURE ADOPTED IS JUSTIFIED BY ARTICLE 36 , WHICH ALLOWS MEMBER STATES TO INTRODUCE RESTRICTIONS ON IMPORTS WHICH ARE JUSTIFIED ON GROUNDS OF PUBLIC POLICY . THE IMPORTATION OF POTATOES INTO IRELAND WOULD HAVE HAD SUCH DISASTROUS CONSEQUENCES FOR THE DISPOSAL OF THE IRISH POTATO CROP THAT PROTECTION OF THE DOMESTIC MARKET BECAME A MATTER OF PUBLIC POLICY , PARTICULARLY SINCE THE CONSEQUENCES OF THAT SITUATION WERE LIKELY TO CONTINUE INDEFINITELY .
22 IRELAND ' S ARGUMENT BASED ON PRIOR CONSULTATIONS WITH THE COMMISSION AND THE COMMISSION ' S FAILURE TO ACT IN THE INITIAL PERIOD AFTER NOTIFICATION OF THE ORDER CANNOT BE ACCEPTED . EVEN IF IRELAND MAY HAVE OBTAINED THE IMPRESSION THAT ITS MEASURE GAVE RISE TO NO OBJECTION , THE COMMISSION CANNOT , EVEN BY APPROVING EXPRESSLY OR BY IMPLICATION A MEASURE ADOPTED UNILATERALLY BY A MEMBER STATE , CONFER ON THAT STATE THE RIGHT TO MAINTAIN PROVISIONS WHICH ARE OBJECTIVELY CONTRARY TO COMMUNITY LAW .
23 WITH REGARD TO THE ARGUMENT BASED ON THE UNCERTAINTY WHICH IS SAID TO SURROUND THE SCOPE OF THE PROVISIONS OF THE TREATY RELATING TO FREE MOVEMENT OF PRODUCTS IMPORTED FROM NON-MEMBER COUNTRIES , IT SHOULD BE OBSERVED IN THE FIRST PLACE THAT ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT , BEGINNING WITH THE JUDGMENT OF 10 DECEMBER 1974 ( CASE 48/74 , CHARMASSON V MINISTER FOR ECONOMIC AFFAIRS AND FINANCE ( 1974 ) ECR 1383 ) AND CONFIRMED BY THE JUDGMENTS OF 16 MARCH 1977 , 29 MARCH 1979 AND 25 SEPTEMBER 1979 , CITED ABOVE , AGRICULTURAL PRODUCTS IN RESPECT OF WHICH A COMMON ORGANIZATION OF THE MARKET HAS NOT BEEN ESTABLISHED ARE SUBJECT TO THE GENERAL RULES OF THE COMMON MARKET WITH REGARD TO IMPORTATION , EXPORTATION AND MOVEMENT WITHIN THE COMMUNITY . A MEMBER STATE MAY NOT THEREFORE RELY ON THE SPECIAL RULES OF ARTICLE 39 ET SEQ ., THE PURPOSE OF WHICH IS TO DEFINE THE BASIS OF A COMMON AGRICULTURAL POLICY , IN ORDER TO ESTABLISH OR TO MAINTAIN ON ITS TERRITORY PROVISIONS DEROGATING FROM THE PRINCIPLES OF THE COMMON MARKET IN RESPECT OF A PRODUCT NOT SUBJECT TO A COMMON ORGANIZATION OF THE MARKET .
24 IN ACCORDANCE WITH THOSE PRINCIPLES , LAID DOWN IN ARTICLES 9 , 10 AND 30 OF THE TREATY , THE MEASURES INTENDED TO FREE INTRA-COMMUNITY TRADE ARE APPLICABLE , AS THE COURT POINTED OUT IN ITS JUDGMENT OF 15 DECEMBER 1976 ( DONCKERWOLCKE , CITED ABOVE ), WITHOUT DISTINCTION TO PRODUCTS ORIGINATING IN THE MEMBER STATES AND TO THOSE COMING FROM NON-MEMBER COUNTRIES WHICH HAVE BEEN PUT INTO ' FREE CIRCULATION '  IN THE COMMUNITY . ONCE THE LATTER PRODUCTS HAVE BEEN DULY IMPORTED INTO THE COMMUNITY IN ACCORDANCE WITH THE PROVISIONS IN FORCE RELATING TO TARIFFS AND TRADE , THEY ARE , AS THE COURT EMPHASIZED , ' DEFINITIVELY AND WHOLLY ASSIMILATED TO PRODUCTS ORIGINATING IN MEMBER STATES '  ( JUDGMENT CITED ABOVE , PARAGRAPH 17 ).
28 FINALLY , IRELAND MAY NOT RELY , IN SUPPORT OF THE MEASURE AT ISSUE , ON THE EXCEPTION OF PUBLIC POLICY PROVIDED FOR IN ARTICLE 36 OF THE TREATY . THAT PROVISION , AS THE COURT HAS CONSISTENTLY POINTED OUT IN ITS DECISIONS , MAY NOT BE RELIED ON BY A MEMBER STATE TO PROTECT ITS ECONOMIC INTERESTS ( SEE JUDGMENT OF 19 DECEMBER 1961 IN CASE 7/61 COMMISSION V ITALY ( 1961 ) ECR 317 , AND MOST RECENTLY , JUDGMENT OF 7 FEBRUARY 1984 IN CASE 238/82 DUPHAR V NETHERLANDS STATE ( 1984 ) ECR 523 , PARAGRAPH 23 ).