1 BY AN APPLICATION LODGED AT THE REGISTRY ON 11 MARCH 1971, THE COMMISSION HAS BROUGHT BEFORE THE COURT, UNDER ARTICLE 141 OF THE EURATOM TREATY, AN ACTION SEEKING A DECLARATION THAT THE FRENCH REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE PROVISIONS OF TITLE II, CHAPTER VI, OF THAT TREATY, BY REFUSING TO SUBMIT TO THE COMMISSION THE ANNUAL REPORTS PRESCRIBED BY ARTICLE 70 OF THE TREATY, BY CONCLUDING, WITHOUT KNOWLEDGE OF THE SUPPLY AGENCY, CONTRACTS RELATING TO THE IMPORTATION FROM THE FEDERAL REPUBLIC OF GERMANY, FROM CANADA AND FROM ITALY, AND TO THE SUPPLY TO ITALY OF SPECIAL FISSILE MATERIALS, AND FINALLY BY REFUSING TO NOTIFY TO THE AGENCY THE EXISTENCE OF AN UNDERTAKING RELATING TO THE PROCESSING OF URANIUM IMPORTED FROM SOUTH AFRICA, AND THE QUANTITIES INVOLVED IN THE DELIVERY IN QUESTION . ADMISSIBILITY
2 THE GOVERNMENT OF THE FRENCH REPUBLIC CHALLENGES THE ADMISSIBILITY OF THE ACTION AND CONTENDS THAT IT HAS BEEN COMMENCED TOO LATE .
3 THE FRENCH GOVERNMENT SAYS THAT SINCE 1965 IT HAS CONSISTENTLY EXPRESSED THE OPINION THAT THE PROVISIONS OF CHAPTER VI OF THE TREATY, WHICH IT IS ALLEGED TO HAVE INFRINGED, HAVE LAPSED, AND IT HAS SUBSEQUENTLY MERELY ACTED IN ACCORDANCE WITH THIS OPINION .
4 IT SAYS THAT IT IS NOT OPEN TO THE COMMISSION TO BRING BEFORE THE COURT OF JUSTICE IN 1971 A SITUATION WHICH HAS LASTED SINCE 1965 AND WHICH IT HAS KNOWN ABOUT SINCE THAT TIME .
5 THE ACTION FOR A DECLARATION THAT A STATE HAS FAILED TO FULFIL AN OBLIGATION PROVIDED FOR BY ARTICLE 141 OF THE TREATY, DOES NOT HAVE TO BE BROUGHT WITHIN A PREDETERMINED PERIOD, SINCE, BY REASON OF ITS NATURE AND ITS PURPOSE, THIS PROCEDURE INVOLVES A POWER ON THE PART OF THE COMMISSION TO CONSIDER THE MOST APPROPRIATE MEANS AND TIME-LIMITS FOR THE PURPOSES OF PUTTING AN END TO ANY CONTRAVENTIONS OF THE TREATY .
6 THE FACT THAT THE COMMISSION ONLY COMMENCED ITS ACTION AFTER A LENGTHY PERIOD OF TIME CANNOT HAVE THE EFFECT OF REGULARIZING A CONTINUING CONTRAVENTION .
7 MOREOVER, ACCORDING TO THE UNCONTESTED ASSERTION OF THE COMMISSION, THE EXISTENCE OF THE DISPUTED TRANSACTIONS WAS ONLY DISCLOSED AT A MORE RECENT DATE, IN CONSEQUENCE OF INQUIRIES MADE CHIEFLY DURING 1968 .
8 ON 24 APRIL 1969 THE COMMISSION NOTIFIED TO THE FRENCH ATOMIC ENERGY COMMISSION THE FACTS WITHIN ITS KNOWLEDGE, AND COMMENCED THE PROCEDURE UNDER ARTICLE 141 ON 12 MARCH 1970 BY INVITING THE FRENCH GOVERNMENT TO SUBMIT ITS OBSERVATIONS ON VARIOUS CONTRAVENTIONS WHICH THE COMMISSION SET OUT IN A PRECISE MANNER .
9 THE FRENCH GOVERNMENT MAINTAINS THAT THE ACTION IS INADMISSIBLE ON THE FURTHER GROUND THAT IT CONSTITUTES A MISUSE OF PROCEDURE .
10 THE SITUATION CREATED AS FROM JANUARY 1965 BY THE FACT THAT THE COUNCIL HAD NEITHER CONFIRMED THE PROVISIONS OF CHAPTER VI OF THE TREATY, NOR ADOPTED NEW PROVISIONS, OUGHT TO HAVE GIVEN RISE TO AN ACTION ON THE GROUND OF FAILURE TO ACT DIRECTED AGAINST THAT INSTITUTION .
11 THE FRENCH GOVERNMENT FURTHER ALLEGES THAT BY SUBSTITUTING FOR THIS AN ACTION FOR A DECLARATION OF A FAILURE TO FULFIL TREATY OBLIGATIONS DIRECTED AGAINST A MEMBER STATE, THE COMMISSION IS SEEKING TO HAVE IT DECIDED " THAT CHAPTER VI, ALTHOUGH NOT CONFIRMED BY THE COUNCIL, HAS REMAINED APPLICABLE ", WHEREAS IT IS NECESSARY ON THE CONTRARY " TO REINFORCE THE OBLIGATION TO ACT WHICH THE TREATY IMPOSES ON THE COUNCIL ".
12 THE FACT THAT THE COUNCIL HAS NOT REACHED A DECISION ON THE QUESTION WHETHER IT WAS NECESSARY, AFTER 31 DECEMBER 1964, TO CONFIRM THE PROVISIONS OF CHAPTER VI OR TO SUBSTITUTE FOR THEM A DIFFERENT SUPPLY SYSTEM, CANNOT PREVENT THE COMMISSION FROM ENSURING RESPECT FOR PROVISIONS WHICH IT CONSIDERS TO BE STILL IN FORCE .
13 THEREFORE, IN SO FAR AS THE MEMBER STATES WERE, FOR THE PERIOD IN QUESTION, BOUND TO COMPLY WITH THE PROVISIONS OF CHAPTER VI OF THE TREATY - ON WHICH THE COURT WILL HAVE TO DECIDE HEREAFTER - AN ACTION SEEKING TO ESTABLISH THAT A MEMBER STATE HAS NOT COMPLIED WITH THE OBLIGATIONS ARISING FROM THE SAID PROVISIONS SERVES TO ENSURE THE APPLICATION OF THE TREATY, AND CANNOT CONSTITUTE A MISUSE OF PROCEDURE .
14 FINALLY, THE OBJECTION THAT THE COMMISSION IS SEEKING TO INFLUENCE THE FUTURE DELIBERATIONS OF THE COUNCIL IS IRRELEVANT .
15 THE ACTION IS ADMISSIBLE . THE SUBSTANCE OF THE CASE ( A ) ON THE INTERPRETATION OF ARTICLE 76 OF THE EURATOM TREATY
16 THE DEFENDANT CONTENDS, FIRST OF ALL, THAT BY VIRTUE OF THE SECOND PARAGRAPH OF ARTICLE 76 OF THE TREATY - AND, IT APPEARS, PARTICULARLY BY VIRTUE OF THE USE IN THIS PARAGRAPH OF THE WORD " AFTER " - IN VIEW OF THE FACT THAT THE COUNCIL DID NOT ON 31 DECEMBER 1964, OR WITHIN A REASONABLE PERIOD AFTER THAT DATE, CONFIRM THE PROVISIONS OF CHAPTER VI, OR ADOPT NEW PROVISIONS, THE SAID PROVISIONS HAVE LAPSED .
17 HENCE, IT IS SAID THAT THE FAILURE TO APPLY THEM CANNOT AMOUNT TO A FAILURE TO FULFIL AN OBLIGATION WITHIN THE MEANING OF ARTICLE 141 .
18 IT CANNOT BE PRESUMED THAT PROVISIONS OF THE TREATY HAVE LAPSED .
19 THE MEMBER STATES AGREED TO ESTABLISH A COMMUNITY OF UNLIMITED DURATION, HAVING PERMANENT INSTITUTIONS INVESTED WITH REAL POWERS, STEMMING FROM A LIMITATION OF AUTHORITY OR A TRANSFER OF POWERS FROM THE STATES TO THAT COMMUNITY .
20 POWERS THUS CONFERRED COULD NOT, THEREFORE, BE WITHDRAWN FROM THE COMMUNITY, NOR COULD THE OBJECTIVES WITH WHICH SUCH POWERS ARE CONCERNED BE RESTORED TO THE FIELD OF AUTHORITY OF THE MEMBER STATES ALONE, EXCEPT BY VIRTUE OF AN EXPRESS PROVISION OF THE TREATY .
21 THIS IS NOT WITHIN THE SCOPE OF ARTICLE 76 .
22 THE OBJECT OF THIS PROVISION, WHICH IS PLACED AT THE END OF CHAPTER VI, AND WHICH PUTS INTO EFFECT THE GENERAL OBLIGATION IMPOSED ON THE COMMUNITY INSTITUTIONS BY ARTICLE 2 ( D ) TO ENSURE THAT ALL USERS RECEIVE A REGULAR AND EQUITABLE SUPPLY OF ORES AND NUCLEAR FUELS IS PRECISELY TO ENABLE THE SUPPLY SYSTEM TO BE ADAPTED TO CHANGING CIRCUMSTANCES AND CANNOT THEREFORE BE INTERPRETED AS DEPRIVING THE COMMUNITY OF A MEANS OF ACTION DESIGNED TO ACHIEVE ONE OF THE OBJECTIVES OF THE TREATY .
23 EVEN AN ABSTENTION BY THE COUNCIL FROM EXERCISING THE POWERS WHICH IT HOLDS UNDER THE SECOND PARAGRAPH OF ARTICLE 76 WITH A VIEW TO ADAPTING THE PROVISIONS OF THIS CHAPTER IN THE LIGHT OF EXPERIENCE, CANNOT HAVE THE EFFECT OF CUTTING THE TIES WHICH THE MEMBER STATES HAVE AGREED TO ESTABLISH BETWEEN THEMSELVES AND OF DISSOLVING THE OBLIGATIONS THEREBY INCUMBENT ON EACH OF THEM .
24 TO ADMIT THAT THE WHOLE OF CHAPTER VI LAPSED WITHOUT ANY NEW PROVISIONS SIMULTANEOUSLY COMING INTO FORCE WOULD AMOUNT TO ACCEPTING A BREAK IN CONTINUITY IN A SPHERE WHERE THE TREATY, PARTICULARLY BY ARTICLE 2, HAS PRESCRIBED THE PURSUIT OF A COMMON POLICY .
25 ALTHOUGH THE TERMS OF ARTICLE 76 INDICATE THAT AFTER SEVEN YEARS THE COUNCIL AND THE COMMISSION MAY INTRODUCE SUCH AMENDMENTS AS EXPERIENCE MAY HAVE SHOWN TO BE NECESSARY, OR CONFIRM THE ORIGINAL PROVISIONS, THEY DO NOT IMPLY THAT ANY LINK WHATEVER CAN BE ESTABLISHED BETWEEN A FAILURE TO EXERCISE THESE POWERS AND THE LAPSE OF THE OLD PROVISIONS, EITHER IMMEDIATELY OR AT ANY SUBSEQUENT DATE .
26 ARTICLE 76 DOES NOT CONTAIN ANY EXPRESS STIPULATION THAT THE COMMUNITY WILL BE RELIEVED OF THE TASKS CONFERRED ON IT BY ARTICLE 2 NOR THAT THESE TASKS SHOULD BE RESTORED TO THE AUTHORITY OF THE MEMBER STATES .
27 NOR CAN THE OBJECTION BE UPHELD THAT THE MAINTENANCE IN FORCE OF THE PROVISIONS IN QUESTION WOULD AMOUNT TO A CONFIRMATION OF THE SAID PROVISIONS IN A FORM AND FOLLOWING METHODS DIFFERENT FROM THOSE EXPRESSLY LAID DOWN BY THE SECOND PARAGRAPH OF ARTICLE 76, SO AS TO RENDER THE LATTER SUPERFLUOUS .
28 UNTIL THE DECISION IS TAKEN EITHER TO MAKE THE EXISTING RULES PERMANENT, OR TO REPLACE THEM BY NEW RULES, THE PROVISIONS OF CHAPTER VI ARE ONLY MAINTAINED ON A TEMPORARY BASIS, SO THAT ANY MOMENT THERE MAY BE SUBSTITUTED FOR THEM A SET OF NEW PROVISIONS CONSTITUTING A DIFFERENT SUPPLY SYSTEM .
29 THE SUBMISSION BASED ON ARTICLE 76 OF THE TREATY MUST THEREFORE BE REJECTED . ( B ) ON THE FACTUAL BASIS OF THE ALLEGED CONTRAVENTIONS
30 THE COMMISSION COMPLAINS, FIRST OF ALL, THAT SINCE 1965 THE DEFENDANT HAS FAILED TO SUBMIT TO THE COMMISSION THE ANNUAL REPORTS PRESCRIBED BY ARTICLE 70 OF THE TREATY .
31 THE FRENCH GOVERNMENT STATES THAT THE INFORMATION REQUIRED TO BE FURNISHED UNDER THIS ARTICLE IS PUBLISHED ANNUALLY IN THE REPORTS OF THE FRENCH ATOMIC ENERGY COMMISSION, WHICH ARE SENT TO THE COMMISSION .
32 THE APPLICANT HAS THEN CONTENDED THAT THESE REPORTS DO NOT " COVER THE WHOLE OF THE INFORMATION REQUIRED ", WITHOUG HOWEVER SPECIFYING IN WHAT RESPECT THE INFORMATION CONTAINED IN THE REPORTS OF THE FRENCH COMMISSION IS INSUFFICIENT .
33 IT APPEARS FROM THE REPORTS SUBMITTED TO THE COURT THAT THEY CONTAIN, AT LEAST AS REGARDS PROSPECTING, PRODUCTION AND THE PROBABLE DEVELOPMENT OF RESERVES, INFORMATION WHICH MAY HELP THE COMMISSION IN THE PERFORMANCE OF ITS DUTIES .
34 MOREOVER, THE LATTER HAS NOT CLAIMED THAT IT HAS EVER SOUGHT ADDITIONAL INFORMATION .
35 IN THESE CIRCUMSTANCES, THE FACTS ADDUCED BY THE COMMISSION ARE NOT ENOUGH TO PERMIT THE CONCLUSION THAT THERE HAS BEEN A FAILURE TO COMPLY WITH ARTICLE 70 .
36 A FURTHER COMPLAINT AGAINST THE DEFENDANT GOVERNMENT IS THAT IT HAS EFFECTED VARIOUS SALES OR PURCHASES OF SPECIAL FISSILE MATERIALS IN INFRINGEMENT OF THE RIGHT OF OPTION AND OF THE EXCLUSIVE RIGHT OF THE COMMISSION TO CONCLUDE SUCH SUPPLY AGREEMENTS, AND THAT IT HAS FAILED TO NOTIFY TO THE AGENCY A PROCESSING CONTRACT FOR URANIUM COMING FROM SOUTH AFRICA .
37 SINCE THE FRENCH GOVERNMENT HAS NOT DISPUTED THAT THE TRANSACTIONS ALLEGED HAVE BEEN EFFECTED WITHOUT THE INTERVENTION OF THE AGENCY, IT MUST BE HELD THAT THE PREROGATIVES OF THE LATTER HAVE NOT BEEN RESPECTED . ( C ) ON OTHER CIRCUMSTANCES WHICH MIGHT EXCLUDE A DECLARATION OF A FAILURE TO FULFIL AN OBLIGATION
38 THE FRENCH GOVERNMENT THEN CONTENDS THAT, EVEN IF THE PROVISIONS OF CHAPTER VI HAVE REMAINED IN FORCE, THEY HAVE ALWAYS BEEN APPLIED IN A PURELY FORMAL MANNER WITHOUT REAL EFFECT .
39 SINCE THE ALLEGED DEFAULTS ESSENTIALLY CONCERN THE PURCHASE OR SALE OF SPECIAL FISSILE MATERIALS, THE DEFENDANT GOVERNMENT OBJECTS THAT THE QUASI-MONOPOLISTIC POSITION OF THE PRINCIPAL SUPPLIER OF THE COMMUNITY HAS PREVENTED IN THIS SPHERE ANY BALANCING OF SUPPLY AND DEMAND, WHEREAS IT WAS JUST THIS BALANCING WHICH JUSTIFIES THE AGENCY' S RIGHT OF OPTION AND ITS EXCLUSIVE RIGHT TO CONCLUDE SUPPLY CONTRACTS .
40 THERE IS NO DOUBT THAT, BY REASON OF THE STRUCTURE OF THE MARKET IN SPECIAL FISSILE MATERIALS, THE BALANCING OF SUPPLY AND DEMAND BY THE INTERVENTION OF THE AGENCY HAS NOT, IN THE COURSE OF THE PERIOD IN QUESTION, RESULTED IN ESTABLISHING A MARKET PRICE .
41 IT DOES NOT FOLLOW, HOWEVER, THAT THE INTERVENTION OF THE AGENCY, AS A COMMUNITY BODY ACTING ON BEHALF OF ALL USERS, NO LONGER MAKES ANY CONTRIBUTION TO THE ATTAINMENT OF THE OBJECTIVES OF THE TREATY .
42 THIS INTERVENTION, PARTICULARLY WITHIN THE FRAMEWORK OF THE COOPERATION AGREEMENT CONCLUDED ON 8 NOVEMBER 1958 BETWEEN EURATOM AND THE UNITED STATES OF AMERICA, WAS SUCH AS TO GUARANTEE TO THE USERS IN DIFFERENT MEMBER STATES EQUAL ACCESS TO SPECIAL FISSILE MATERIALS .
43 IN ANY CASE, THE FACT THAT MARKET CONDITIONS MAY DURING A GIVEN PERIOD HAVE RENDERED LESS NECESSARY THE USE OF THE SUPPLY MECHANISMS PRESCRIBED BY THE TREATY DOES NOT SUFFICE TO DEPRIVE THE PROVISIONS RELATING TO THESE MECHANISMS OF THEIR MANDATORY CHARACTER .
44 FINALLY, THE FRENCH GOVERNMENT CONTENDS THAT THE LACK OF ANY DECISION BY THE COUNCIL AT THE END OF THE SEVEN-YEAR PERIOD PRESCRIBED BY ARTICLE 76 OF THE TREATY HAS CREATED AN EQUIVOCAL LEGAL SITUATION, THE MAINTENANCE IN FORCE OF THE PROVISIONS OF CHAPTER VI HAVING BECOME, AT LEAST, UNCERTAIN, IN VIEW OF THE VARIOUS POSSIBLE INTERPRETATIONS OF THE SECOND PARAGRAPH OF THE SAID ARTICLE 76 .
45 MOREOVER, IT IS SAID THAT THE OTHER MEMBER STATES HAVE NOT BEEN PREJUDICED IN ANY WAY BY REASON OF THE BEHAVIOUR COMPLAINED OF .
46 IN THESE CIRCUMSTANCES, ACCORDING TO THE FRENCH GOVERNMENT, THERE CAN BE NO FAILURE TO FULFIL AN OBLIGATION WITHIN THE MEANING OF ARTICLE 141 .
47 IT IS NOT POSSIBLE TO JUSTIFY A FAILURE TO FULFIL AN OBLIGATION BY INVOKING THE UNCERTAINTY OF THE LEGAL SITUATION IN WHICH THE MEMBER STATE FOUND ITSELF, AND AGAINST WHICH THE TREATY AFFORDS IT MEANS OF ACTION .
48 ON THE ONE HAND, THE GENERAL OBLIGATION OF COOPERATION IMPOSED BY ARTICLE 192 SHOULD HAVE INDUCED THE DEFENDANT TO PUT AN END TO THE UNCERTAINTY ON WHICH IT RELIES, BY MAKING USE OF THE MEANS OFFERED TO IT BY THE TREATY, WHICH PUTS AT THE DISPOSAL OF EACH INTERESTED STATE, PARTICULARLY BY ARTICLE 148, SUITABLE METHODS FOR REMEDYING ANY LACK OF ACTION ON THE PART OF THE COUNCIL .
49 ON THE OTHER HAND, THE PROCEDURE FOR A DECLARATION OF A FAILURE ON THE PART OF A STATE TO FULFIL AN OBLIGATION ITSELF AFFORDS A MEANS OF DETERMINING THE EXACT NATURE OF THE OBLIGATIONS OF THE MEMBER STATES IN CASE OF DIFFERENCES OF INTERPRETATION .
50 FINALLY, ARTICLE 141 DOES NOT REQUIRE THAT OTHER MEMBER STATES SHOULD HAVE BEEN PREJUDICED AS A CONDITION FOR THE USE OF THE PROCEDURE FOR A DECLARATION OF A FAILURE TO FULFIL AN OBLIGATION .
51 THE SUBMISSION MUST THEREFORE BE REJECTED .