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Document 61969CC0026
Opinion of Mr Advocate General Roemer delivered on 17 February 1970. # Commission of the European Communities v French Republic. # Case 26-69.
Προτάσεις του γενικού εισαγγελέα Roemer της 17ης Φεβρουαρίου 1970.
Επιτροπή των Ευρωπαϊκών Κοινοτήτων κατά Γαλλικής Δημοκρατίας.
Υπόθεση 26/69.
Προτάσεις του γενικού εισαγγελέα Roemer της 17ης Φεβρουαρίου 1970.
Επιτροπή των Ευρωπαϊκών Κοινοτήτων κατά Γαλλικής Δημοκρατίας.
Υπόθεση 26/69.
Αγγλική ειδική έκδοση 1969-1971 00383
ECLI identifier: ECLI:EU:C:1970:9
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 17 FEBRUARY 1970 ( 1 )
Mr President,
Members of the Court,
The case before the Court today concerns the question whether the Commission was right in accusing the French Government of having infringed provisions of Community law. This infringement is claimed to have occurred on the grounds that until the entry into force of the Agreement establishing an Association between the European Community and the Tunisian Republic, that is to say until 1 September 1969, France did not collect levies on olive oil imported from Tunisia as provided for in Regulation No 136/66 of the Council of 22 September 1966 (OJ p. 3025) on the establishment of a common organization of the market in oils and fats, on the basis of the difference between the threshold price and the cif price (or to be more precise, as laid down by Article 13 of that regulation on unrefined olive oil from third countries and by Article 14 in respect of refined olive oil from third countries). The Journal Officiel of the French Republic of 8 December 1966 in. fact contains a notice to importers according to which the levies under Regulation No 136/66 are not due on imports from Morocco and Tunisia to the extent that such imports fall within the limits of the quotas opened for those countries in respect of the year 1966 or 1966/1967. I must moreover mention the order published in the Journal Officiel of the French Republic of 19 January 1967 which laid down that in respect of imports of olive oil from Tunisia there should be a zero-rated quota of 20000 metric tonnes in respect of the year 1967. For the sake of completeness only, I would also mention that this order likewise provided for a quota of 6000 metric tonnes in respect of Morocco; but this fact is without significance for the present case. Furthermore I must refer to the notice to importers published in the Journal Officiel of the French Republic of 2 June 1967 according to which the levy under Regulation No 136/66 was not due on imports of olive oil of a particular kind originating in Tunisia to the extent that these remained within the limits of the quota opened in respect of the year 1967.
In the face of this, the Commission addressed a letter on 1 August 1967 to the French Minister for Foreign Affairs in which it pointed out that the importation from Morocco and Tunisia free of levy, infringed Regulation No 136/66 and asked the French Government to forward its observations on this complaint within a period of two months. In its reply of 3 November 1967 the French Government argued that under Protocol I.7 to the EEC Treaty which also applies to the relationship of France with Morocco and Tunisia, Articles 13 and 14 of the aforementioned regulation of the Council are not applicable to imports originating in those countries. Moreover the French Government referred to the damage which such an application would inevitably involve for the economic life of Tunisia ánd Morocco. In accordance with this view a notice to importers was published in the Journal Officiel of 12 January 1968 pursuant to which a quota of 20000 metric tonnes of olive oil originating in Tunisia (nothing was said about Morocco) could be imported into France, free of levy in the year 1968.
Thereupon on 3 May 1968 the Commission issued a formal notice under Article 169 of the EEC Treaty. It repeated therein the opinion contained in its letter of 1 August 1967 and set a time-limit of 30 days for the French Government to put an end to this infringement of the Treaty.
But the French Government persisted in its point of view and in the Journal Officiel of 31 January 1969 it informed importers that during 1969 up to 20000 metric tonnes of olive oil of a particular kind could be imported from Tunisia without payment of the levy provided for in the Regulation No 136/66.
This was the occasion for the Commission to commence proceedings. By application lodged on 14 June 1969 it submitted to the Court of Justice the dispute outlined which bears exclusively on the case of Tunisia, for at that date the excemption from levy already no longer applied to imports of olive oil from Morocco. Accordingly it is now necessary to examine the submission by which the Commission asks you to rule that in excluding the application of the levy within the limits of a quota fixed annually on imports of olive oil originating in and coming from Tunisia the French Government has infringed Articles 13 (1) and 14(1) of Regulation No 136/66.
Legal analysis
1. |
Before examining whether this application is well-founded, it is necessary briefly to show that there are no objections as to admissibility. I consider that this is the proper course because the infringement complained of by the Commission no longer exists since the coming into force of the Agreement for establishing an Association between the European Economic Community and the Tunisian Republic (that is to say since 1 September 1969), France since that date adhering to Regulation of the Council No 1471/69 (OJ L 198) which lays down in a uniform manner special rates of levy for the Community for imports of olive oil coming from Tunisia. In fact, as the Court of Justice has already emphasized in similar cases (Case 7/61, Rec. 1971, p. 653) this fact is of no importance. As regards the admissibility of the application under Article 169 of the EEC Treaty the only important element is that the French Government did not comply with the Commission's opinion within the time-limit of one month fixed in the notice of 3 May 1968 and that the situation complained of still existed at the time when the action was brought. Besides, it must be recognized that the Commission has an interest in this declaration because the Protocol cited by the French Government continues to apply to products not comprised within the Association Agreement to which I have referred and because the application of the Protocol to other products is only suspended for the duration of the validity of the Association Agreement (that is to say for five years). On this point I can refer the Court to the exchange of letters published in the Official Journal of 1969 (L 198, p. 87) and I can now without further preliminary remarks start the examination on the substance of the case. |
2. |
As I have already said, the French Government, accused of having infringed the Treaty by not charging the levies on olive oil coming from Tunisia provided for under Regulation No 136/66, defends itself by citing the Protocol ‘on goods originating in and coming from certain countries and enjoying special treatment when imported into a Member State’, annexed to the EEC Treaty (Protocol I.7). The determination of its scope therefore constitutes the central problem of the case before us. This justifies starting by quoting its text to the extent that it is of interest in this case. In the first paragraph of the Protocol we read: ‘The application of the Treaty establishing the European Economic Community shall not require any alteration in the customs treatment applicable, at the time of the entry into force of this Treaty, to imports … into France of goods originating in and coming from Morocco, Tunisia…’ Since in the French Government's view the levies are not customs duties (we can deduce this from a letter of 3 November 1967) the problem of interpretation accordingly centres on the question whether the notion of ‘customs treatment’ to which we have referred must be understood in a narrow sense and limited to customs duties as such or whether in a wider sense it must be understood as ‘import treatment’. This lastmentioned interpretation is as we know, that adopted by the French Government. Starting from this premise, the French Government argues as follows: bearing in mind that at the time of the entry into force of the EEC Treaty the imports of olive oil coming from Tunisia were not subject to French customs duties, Protocol I.7 exempt ed France from imposing on Tunisian oil a variable charge on imports having like effect to that which was introduced — in the form of a levy — at the time of the entry into force of the organization of the market relating thereto and replacing the customs duty. In support of this thesis the French Government has presented a series of observations which the Commission has tried to demolish by its arguments. Let us now examine the relevant points in detail.
Finally let us see what to deduce from these considerations which do certaintly carry weight. First, we may have justifiable doubts in relation to the argument that the Association Agreement and the Regulation of the Council based thereon are intended to retain for the benefit of the Tunisian Republic advantages in respect of olive oil equivalent to those it enjoyed under the special French régime. In this respect it can be said that in the GATT negotiations on this point only compensation within certain limits was considered. The correctness of the French thesis is also put in doubt by the Tunisian Government's stand taken in the course of the negotiations with the Community; its attitude was that in order to maintain all the advantages granted by the French Government it was necessary to deduct 8.5 ua per 100 kg from the levy to be collected under Article 13 of Regulation No 133/66, whilst the aforementioned Regulation No 1471/69 of the Council (OJ L 198) only grants a reduction of 5.5 ua per 100 kg in respect of imports of olive oil into the Community. Nevertheless it is not necessary to go into details of these calculations because it is really not yet possible to give a reliable opinion after the short period of time which has elapsed since the entry into force of the Association Agreement and on the basis of the different documents produced. The determining factor really is that even if the equality of the advantages cannot be disregarded, it must not be forgotten that these advantages are henceforth granted by the Community, after it has carefully taken into account its interests, which may perhaps require a different solution under different circumstances. Apart from this it must not in any event be forgotten that Regulation No 1471/69 provides a guaranteed minimum price for Tunisia. This did not exist in the special French régime. This at least therefore shows one difference, the importance of which, in the interest of the common agricultural policy, must not be underestimated. A second consideration relates to the thesis that recognition of the correctness of the Commission's point of view made a break in the advantageous relationship which Tunisia maintained with France inevitable with the entry into force of Regulation No 136/66 because considerable levies had become payable. The Court of Justice sought to obtain clarification on this subject by questions addressed to the parties, whereupon we learned that the problem was not raised at all at the time of preparation of Regulation No 136 and that France had expressed no reservations as regards its imports of olive oil from Tunisia. We shall leave aside the question whether negligence can be alleged against the parties for we are dealing with an objective procedure which is not concerned with allocating blame. In my opinion the thesis that the problem as it faces us today had not been recognized at the time is perfectly defensible. If it had been recognized, if the great importance of exports of olive oil for the Tunisian economy had been sufficiently spotlighted, there is no doubt that, even admitting the interpretation of Protocol I.7 recommended by the Commission, a reasonable solution could have been found for Tunisia either within the framework of Regulation No 136/66 or of a special regulation. In my opinion one may make this assumption because, as was shown at the time when the Association Agreement was entered into, the Community authorities are perfectly well aware of the obligatory nature of the declaration of intent to which I have referred, in particular where it uses terms indicating that the traditional trade between the Member States of the European Economic Community and the countries belonging to the Franc Area is to be maintained and expanded. But having regard to the development of the Community I consider it particularly important, that this concerned a problem in Community law and not in purely national law. In the final analysis the thesis of an inevitable break in the external economic development of Tunisia is not therefore relevant. |
3. |
Having said all this let me summarize my views. I cannot, I think, summarize without acknowledging that the French Government has striven in an impressive manner and with a profound sense of its responsibility to deal with this problem, which is delicate both from a legal and a political point of view, by arguing genuinely for the solution which it considers correct. All things considered one must still find that the text of Protocol I.7, its meaning and purpose, the general pattern of the Treaty and above all the arguments which may be drawn from the requirements of the common agricultural policy suggest that the Commission's opinion is correct. Accordingly, Protocol I.7 does not contain customs regulations as such; in relying thereon the Member States do not therefore have the right to refrain from collecting levies under Community law. Since, as regards imports from Tunisia, the French Government, relying on the aforementioned Protocol, has not collected the levies laid down by Regulation No 136/66 for imports of olive oil from third States we must find that it has acted contrary to Community law. In view of this finding, the unsuccessful defendant must also bear the costs. |
( 1 ) Translated from the German.