61980O0024

APPLICATION FOR A DECLARATION THAT A MEMBER STATE HAS FAILED TO FULFIL ITS OBLIGATIONS - JUDGMENT OF THE COURT MAKING SUCH A DECLARATION - EFFECTS

( EEC TREATY , ARTS . 169 AND 171 )

THE FINDING IN A JUDGMENT HAVING THE FORCE OF RES JUDICATA THAT THE MEMBER STATE CONCERNED HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER COMMUNITY LAW AMOUNTS TO A PROHIBITION HAVING THE FULL FORCE OF LAW ON THE COMPETENT NATIONAL AUTHORITIES AGAINST APPLYING A NATIONAL RULE RECOGNIZED AS INCOMPATIBLE WITH THE TREATY AND , IF THE CIRCUMSTANCES SO REQUIRE , AN OBLIGATION ON THEM TO TAKE ALL APPROPRIATE MEASURES TO ENABLE COMMUNITY LAW TO BE FULLY APPLIED . IT FOLLOWS THAT BY REASON SOLELY OF THE JUDGMENT DECLARING THE MEMBER STATE TO BE IN DEFAULT , THE STATE CONCERNED IS REQUIRED TO TAKE THE NECESSARY MEASURES TO REMEDY ITS DEFAULT AND MAY NOT CREATE ANY IMPEDIMENT WHATSOEVER .

IN JOINED CASES 24 AND 97/80 R

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISERS , MARC SOHIER AND BERNARD PAULIN , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

FRENCH REPUBLIC , REPRESENTED BY GILBERT GUILLAUME , ACTING AS AGENT , AND NOEL MUSEUX , ACTING AS ASSISTANT AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY , 2 RUE BERTHOLET ,

DEFENDANT ,

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES ORDERING THE DEFENDANT TO DESIST FORTHWITH FROM APPLYING ANY RESTRICTION AND/OR LEVYING A CHARGE ON IMPORTS OF MUTTON AND LAMB FROM THE UNITED KINGDOM ,

1 THE COURT IN ITS JUDGMENT OF 25 SEPTEMBER 1979 IN CASE 232/78 ( COMMISSION OF THE EUROPEAN COMMUNITIES V FRENCH REPUBLIC ( 1979 ) ECR ) DECLARED THAT BY CONTINUING TO APPLY AFTER 1 JANUARY 1978 ITS RESTRICTIVE NATIONAL SYSTEM TO THE IMPORTATION OF MUTTON AND LAMB FROM THE UNITED KINGDOM THE FRENCH REPUBLIC HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 12 AND 30 OF THE EEC TREATY .

2 THE COMMISSION BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 14 JANUARY AND 13 MARCH 1980 HAS BROUGHT TWO ACTIONS BEFORE THE COURT FOR DECLARATIONS THAT THE FRENCH REPUBLIC BY NEGLECTING TO TAKE THE NECESSARY STEPS TO COMPLY WITH THE ABOVE-MENTIONED JUDGMENT HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 171 OF THE EEC TREATY .

3 THE FIRST APPLICATION ( CASE 24/80 ) REQUESTS THE COURT TO ' ' DECLARE THAT THE FRENCH REPUBLIC , BY CONTINUING TO APPLY AFTER 25 SEPTEMBER 1979 ITS RESTRICTIVE NATIONAL SYSTEM TO THE IMPORTATION OF MUTTON AND LAMB FROM THE UNITED KINGDOM , HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 171 OF THE EEC TREATY ' ' .

4 THE SECOND APPLICATION ( CASE 97/80 ) REQUESTS THE COURT TO ' ' DECLARE THAT THE FRENCH REPUBLIC , BY CONTINUING TO LEVY AFTER 25 SEPTEMBER 1979 A CHARGE ON IMPORTS OF MUTTON AND LAMB FROM THE UNITED KINGDOM , HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 171 OF THE EEC TREATY ' ' .

5 THE FRENCH REPUBLIC LODGED ITS DEFENCE IN CASE 24/80 ON 22 FEBRUARY 1980 . IT CONTENDED THAT THE ACTION SHOULD BE DISMISSED , ITS PRINCIPAL SUBMISSION BEING THAT ARTICLE 171 IMPLIES THAT MEMBER STATES ARE ALLOWED FOR THE PURPOSE OF TAKING THE NECESSARY STEPS TO COMPLY WITH A JUDGMENT OF THE COURT A ' ' REASONABLE PERIOD OF TIME ' ' WHICH VARIES WITH EACH CASE AND THAT THIS PERIOD HAS NOT BEEN EXCEEDED IN THIS CASE .

6 THE COMMISSION , PURSUANT TO ARTICLE 186 OF THE EEC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE OF THE COURT , ON 13 MARCH 1980 , SUBSEQUENT TO THE LODGING OF ITS APPLICATION IN CASE 97/80 , MADE AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IN BOTH CASES , IN WHICH IT ASKS THE COURT TO ' ' ORDER THE FRENCH REPUBLIC TO DESIST FORTHWITH FROM APPLYING ANY RESTRICTION AND/OR LEVYING ANY CHARGE ON IMPORTS OF MUTTON AND LAMB FROM THE UNITED KINGDOM ' ' .

7 THE TWO CASES WERE JOINED BY AN ORDER OF THE COURT DATED 24 MARCH 1980 .

8 THE FRENCH REPUBLIC , WHILST ACKNOWLEDGING THAT THE JUDGMENT OF THE COURT OF 25 SEPTEMBER 1979 IMPOSES UPON IT THE OBLIGATION TO DISCONTINUE ITS NATIONAL ORGANIZATION OF THE MARKET IN MUTTON AND LAMB , HAS SUBMITTED THAT THERE ARE OBSTACLES OF A POLITICAL AND ECONOMIC NATURE IMPEDING THE IMMEDIATE ENFORCEMENT OF THAT JUDGMENT . THE FRENCH GOVERNMENT HAS ALSO MAINTAINED THAT THE ORDER SOUGHT BY THE COMMISSION IS NOT COVERED BY ARTICLE 186 AND THAT IN ANY CASE THE CONDITIONS LAID DOWN BY THE CASE-LAW OF THE COURT FOR THE APPLICATION OF INTERIM MEASURES ARE NOT PRESENT . THE FRENCH REPUBLIC HAS THEREFORE CONTENDED THAT THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES SHOULD BE DISMISSED .

9 THE COMMISSION REPLIES THAT THE PERIOD WHICH HAS ELAPSED SINCE THE DELIVERY BY THE COURT OF ITS JUDGMENT IN CASE 232/78 EXCEEDS THE ' ' REASONABLE PERIOD ' ' FOR THE ADOPTION OF THE REQUISITE MEASURES FOR ENSURING THAT THE JUDGMENT OF THE COURT IS ENFORCED . THE COMMISSION THEREFORE CONSIDERS THAT , OWING TO THE SERIOUS DAMAGE WHICH HAS FLOWED FROM THE FRENCH REPUBLIC ' S MAINTAINING IN FORCE MEASURES RESTRICTING IMPORTS OF MUTTON AND LAMB FROM THE UNITED KINGDOM , IT IS A MATTER OF URGENCY TO ORDER BY WAY OF INTERIM MEASURES THE REPEAL OF THE SAID MEASURES .

10 ARTICLE 171 OF THE TREATY STATES THAT ' ' IF THE COURT OF JUSTICE FINDS THAT A MEMBER STATE HAS FAILED TO FULFIL AN OBLIGATION UNDER THIS TREATY , THE STATE SHALL BE REQUIRED TO TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT OF JUSTICE ' ' .

11 AS PROVIDED FOR IN ARTICLE 155 OF THE TREATY IT IS FOR THE COMMISSION TO ' ' ENSURE THAT THE PROVISIONS OF THIS TREATY AND THE MEASURES TAKEN BY THE INSTITUTIONS PURSUANT THERETO ARE APPLIED ' ' ; THE COMMISSION IS THEREFORE UNDER A DUTY TO ENSURE ALSO THAT MEMBER STATES COMPLY WITH THE JUDGMENTS DELIVERED BY THE COURT OF JUSTICE .

12 THE COMMISSION IN THE EXERCISE OF THIS POWER MAY BRING ACTIONS PURSUANT TO ARTICLE 169 OF THE TREATY IF IT CONSIDERS THAT A MEMBER STATE HAS NOT TAKEN THE NECESSARY STEPS TO ENSURE COMPLIANCE WITH A JUDGMENT OR THAT ANY MEASURES TAKEN FOR THIS PURPOSE DO NOT COMPLY WITH THE OBLIGATIONS ARISING OUT OF THE LATTER . IN THE CONTEXT OF SUCH AN ACTION THE POSSIBILITY CANNOT BE RULED OUT THAT THE COURT BE ASKED TO PRESCRIBE SUCH INTERIM MEASURES AS MAY BE NECESSARY PURSUANT TO ARTICLE 186 OF THE TREATY AND ARTICLE 36 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC PROVIDED THAT THE CONDITIONS LAID DOWN BY THOSE PROVISIONS AND BY ARTICLE 83 OF THE RULES OF PROCEDURE ARE PRESENT . IT IS FOR THE COURT TO DETERMINE IN EACH INDIVIDUAL CASE THE NEED FOR SUCH INTERIM MEASURES IN ACCORDANCE WITH THE CRITERIA LAID DOWN BY THE SAID PROVISIONS .

13 IN THE PRESENT CASE THIS NEED MUST BE ASSESSED BY TAKING INTO ACCOUNT , ON THE ONE HAND , THE LEGAL CONSIDERATIONS ARISING FROM THE ABOVE-MENTIONED JUDGMENT OF THE COURT OF 25 SEPTEMBER 1979 AND , ON THE OTHER HAND , THE AIM OF THE TWO ACTIONS BROUGHT SUCCESSIVELY BY THE COMMISSION AGAINST THE FRENCH REPUBLIC FOR FAILURE TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 171 OF THE TREATY .

14 IN THE LIGHT OF THESE CONSIDERATIONS IT IS NECESSARY FIRST TO RECALL THE TERMS OF THE JUDGMENT OF 25 SEPTEMBER 1979 . ALTHOUGH IT IS TRUE THAT THE COURT STATED THAT IT WAS AWARE OF ' ' THE GENUINE PROBLEMS WHICH THE FRENCH AUTHORITIES HAVE TO SOLVE IN THE SECTOR UNDER CONSIDERATION AND OF THE DESIRABILITY OF ACHIEVING THE ESTABLISHMENT , IN THE SHORTEST POSSIBLE TIME , OF A COMMON ORGANIZATION OF THE MARKET IN MUTTON AND LAMB ' ' , IT NEVERTHELESS POINTED OUT THAT ' ' AFTER THE EXPIRATION OF THE TRANSITIONAL PERIOD OF THE EEC TREATY , AND , AS FAR AS THE NEW MEMBER STATES ARE CONCERNED , AFTER THE EXPIRATION OF THE TIME-LIMITS FOR THE TRANSITION SPECIFICALLY PROVIDED FOR IN THE ACT OF ACCESSION , A NATIONAL ORGANIZATION OF THE MARKET MUST NO LONGER OPERATE IN SUCH A WAY AS TO PREVENT THE TREATY PROVISIONS RELATING TO THE ELIMINATION OF RESTRICTIONS ON INTRA-COMMUNITY TRADE FROM HAVING FULL FORCE AND EFFECT ' ' .

15 ALTHOUGH THE COURT STRESSED IN ITS JUDGMENT THAT ' ' IT IS FOR THE COMPETENT INSTITUTIONS AND FOR THEM ALONE TO ADOPT WITHIN THE APPROPRIATE PERIODS THE REQUISITE MEASURES WITH A VIEW TO FINDING , IN A COMMUNITY CONTEXT , A COMPREHENSIVE SOLUTION OF THE PROBLEM OF THE MARKET IN MUTTON AND LAMB AND OF THE SPECIAL DIFFICULTIES WHICH ARISE IN THIS CONNEXION IN CERTAIN AREAS ' ' , IT STATED THAT THE FACT THAT THE WORK DONE BY THE COMMUNITY INSTITUTIONS WITH A VIEW TO ESTABLISHING A COMMON ORGANIZATION OF THE MARKET IN THE SECTOR UNDER CONSIDERATION HAS NOT YET BEEN SUCCESSFUL ' ' IS NOT A SUFFICIENT JUSTIFICATION FOR THE MAINTENANCE BY A MEMBER STATE OF A NATIONAL ORGANIZATION OF THE MARKET WHICH INCLUDES FEATURES WHICH ARE INCOMPATIBLE WITH THE REQUIREMENTS OF THE TREATY RELATING TO THE FREE MOVEMENT OF GOODS , SUCH AS BANS ON IMPORTS AND LEVYING DUES ON IMPORTED PRODUCTS , UNDER ANY DESIGNATION WHATSOEVER ' ' .

16 AS THE COURT HELD IN ITS JUDGMENT OF 13 JULY 1972 IN CASE 48/71 , COMMISSION OF THE EUROPEAN COMMUNITIES V ITALIAN REPUBLIC ( 1972 ) ECR 527 THE FINDING IN A JUDGMENT HAVING THE FORCE OF RES JUDICATA THAT THE MEMBER STATE CONCERNED HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER COMMUNITY LAW AMOUNTS TO ' ' A PROHIBITION HAVING THE FULL FORCE OF LAW ON THE COMPETENT NATIONAL AUTHORITIES AGAINST APPLYING A NATIONAL RULE RECOGNIZED AS INCOMPATIBLE WITH THE TREATY AND , IF THE CIRCUMSTANCES SO REQUIRE , AN OBLIGATION ON THEM TO TAKE ALL APPROPRIATE MEASURES TO ENABLE COMMUNITY LAW TO BE FULLY APPLIED ' ' . IT FOLLOWS THAT BY REASON SOLELY OF THE JUDGMENT DECLARING THE MEMBER STATE TO BE IN DEFAULT , THE STATE CONCERNED IS REQUIRED TO TAKE THE NECESSARY MEASURES TO REMEDY ITS DEFAULT AND MAY NOT CREATE ANY IMPEDIMENT WHATSOEVER .

17 THE FRENCH REPUBLIC IS THEREFORE REQUIRED , BY VIRTUE OF ARTICLES 12 AND 30 OF THE TREATY , AS DECLARED IN THE JUDGMENT OF 25 SEPTEMBER 1979 , TO DESIST FROM APPLYING ANY RESTRICTIVE MEASURE OF ANY KIND WHATSOEVER TO THE IMPORTATION OF MUTTON AND LAMB FROM THE UNITED KINGDOM ; AS WAS STATED IN THAT JUDGMENT , THAT OBLIGATION WAS EFFECTIVE AS FROM 1 JANUARY 1978 .

18 IT MUST MOREOVER BE BORNE IN MIND THAT THE PURPOSE OF THE APPLICATIONS IN JOINED CASES 24 AND 97/80 IS TO OBTAIN A DECLARATION THAT THE FRENCH REPUBLIC , BY CONTINUING TO APPLY ITS RESTRICTIVE SCHEME AFTER THE JUDGMENT OF 25 SEPTEMBER 1979 HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 171 OF THE TREATY .

19 THE COMMISSION , BY REQUESTING THE COURT IN AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES TO ORDER THE FRENCH REPUBLIC TO DESIST FORTHWITH FROM APPLYING ITS RESTRICTIVE SCHEME , IS ASKING THE COURT FOR AN ORDER THE PURPOSE OF WHICH WOULD IN SUBSTANCE BE THE SAME AS THAT OF THE JUDGMENT OF 25 SEPTEMBER 1979 . IT FOLLOWS THAT THE INTERIM MEASURES WHICH THE COMMISSION HAS ASKED THE COURT TO ORDER ARE NOT IN THE PRESENT CIRCUMSTANCES WITHIN THE MEANING OF ARTICLE 186 OF THE TREATY .

20 THERE ARE THEREFORE NO GROUNDS FOR ORDERING THE INTERIM MEASURES REQUESTED BY THE COMMISSION .

ON THOSE GROUNDS ,

THE COURT ,

AS AN INTERLOCUTORY DECISION , HEREBY ORDERS AS FOLLOWS :

( 1 ) THERE ARE NO GROUNDS FOR ORDERING THE INTERIM MEASURES REQUESTED BY THE COMMISSION .

( 2 ) THE COSTS ARE RESERVED .