1.

This action for failure to fulfil obligations under the Treaty concerns obstructions to the free movement of fruit and vegetables resulting from actions by private individuals in France and the obligation of the French Republic to put an end to those obstructions.

2.

The Commission has described the facts and circumstances underlying this action and the pre-litigation procedure concisely and fully in its application. The Government of the French Republic has referred to that account in its defence. In view of the importance of this case, it seems to me appropriate to cite that account in full here: ( 1 )

3.

The Commission therefore decided to bring the matter before the Court of Justice. It seeks a declaration that, by failing to adopt all necessary and proportionate measures to prevent the free movement of fruit and vegetables from being obstructed by violent actions committed by individuals, the French Republic has failed to fulfil its obligations under the common organizations of the markets in agricultural products and under Article 30 in conjunction with Article 5 of the EC Treaty. It also claims that the defendant should be ordered to pay the costs.

4.

The Kingdom of Spain and the United Kingdom have intervened in support of the form of order sought by the Commission.

5.

As the Commission representative rightly pointed out at the hearing before the Court, this case concerns an unusual form of Treaty infringement. The defendant Member State is not accused of having infringed the provisions of Community law by its own measures. The issue is rather whether a Member State can infringe an obligation under the EC Treaty by failing to adopt or by adopting insufficient measures to combat conduct engaged in by individuals which jeopardizes the implementation of certain provisions of the Treaty. The Court will have to decide whether a Member State can be called to account when the importation of goods from other Member States is violently obstructed by its own nationals. If that question is answered in the affirmative, it will have to be established whether such an infringement actually exists in this case.

6.

This case therefore concerns a situation with which, to my knowledge, the Court has never previously had to deal in this form. ( 3 ) There is certainly nothing new in the fact that, from time to time, private individuals resort to violent means to protect themselves against imports of goods from other Member States. In proceedings on which it gave a decision in the early 1980s, concerning imports of Italian wine into France, the Court already had occasion to note that French winegrowers had, at that time, taken violent action against those imports. ( 4 ) What is new, however, is the question of whether a Member State can, in one way or another, be held responsible for such conduct of private individuals. The fundamental importance of the issues thus raised is obvious. It has, moreover, been clearly addressed by the parties to the proceedings before the Court.

7.

Article 169 of the Treaty relates to the failure by a Member State to fulfil obligations under Community law. An action based on that article can therefore succeed only if the Member State itself has failed to fulfil its obligations under the Treaty.

8.

This case is first and foremost concerned with the free movement of goods, which is protected by Article 30. However, the prohibition of quantitative restrictions and measures having equivalent effect, which is established in that provision, clearly relates to measures taken by the Member States and their institutions. ( 5 ) It is undisputed that the French authorities themselves have not taken any measures which could be regarded directly as quantitative restrictions on imports or measures having equivalent effect.

9.

Article 30 admittedly also applies to measures taken by private persons if the latter are controlled by the Member State concerned. That is clear from the Court's judgment, cited in another context by the United Kingdom Government, in an action brought by the Commission against Ireland for failure to fulfil obligations under the Treaty. ( 6 ) The subject-matter of that case was an advertising campaign, conducted by the Irish Goods Council, which encouraged consumers in Ireland to buy only domestic products (‘Buy Irish’). The Irish Goods Council was a private company, the members of whose Management Committee were, however, appointed by the Irish Government. The Irish Government also subsidized the Irish Goods Council with public funds which covered the greater part of its expenses, and defined the aims and the broad outline of the campaign conducted by that institution. The Court held that in those circumstances the Irish Government could not rely on the fact that the campaign had been conducted by a private company ‘in order to escape any liability it may have under the provisions of the Treat’. ( 7 ) However, there is nothing (with regard to ‘Coordination Rurale’, for example) to indicate that a comparable state of affairs might have existed in the present case. The Commission has also made absolutely no reference to such a possibility in its submissions.

10.

The situation with respect to the common organizations of the markets in agricultural products is no different from that appertaining to Article 30. Under Article 38(2) of the EC Treaty, save as otherwise provided in Articles 39 to 46, the rules laid down for the establishment of the common market — and therefore also Article 30 of the EC Treaty — also apply to agricultural products. The Court has accordingly already held on many occasions ‘that the common organizations of the markets are based on the concept of an open market to which every producer has free access under genuinely competitive conditions and the functioning of which is regulated solely by the instruments provided for in those organizations.’ ( 8 ) In that sphere also, therefore, it is only measures taken by a Member State or its institutions that can infringe the principle of the free movement of goods.

11.

The complaints made by the Commission do not, therefore, have a sufficient basis in Article 30 (and the common organizations of the markets in fruit and vegetables) alone. I am therefore unable to endorse the contrary view taken by the Spanish Government (which, it must be said, does not consider the aforementioned objections).

12.

The Commission has taken that into account in that it complains that the defendant has failed to fulfil its obligations arising from the common organization of the markets in agricultural products and from Article 30 in conjunction with Article 5 of the EC Treaty. Under the first sentence of the first paragraph of Article 5 of the EC Treaty, the Member States are to take ‘all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from actions taken by the institutions of the Community.’ Under Article 30 of the EC Treaty and the common organization of the markets in agricultural products, the Member States are obliged to adopt all appropriate measures to ensure freedom of movement for goods, unless a restriction of that freedom is allowed by Community law itself. For the purpose of examining the action brought by the Commission this means that two conditions must be verified: firstly, it must be established whether a state of affairs exists which, if attributable to the defendant, would constitute an infringement of principle of the free movement of goods. It must then be considered whether that state of affairs can be attributed to the French Republic and whether the latter can be held responsible for that state of affairs. This question would have to be answered in the affirmative if the defendant did not take ‘all appropriate measures, whether general or particular’, which were necessary to protect the free movement of goods.

13.

There can be no doubt in this case that the conduct of private individuals in question would constitute an infringement of the principle of the free movement of goods if it could be attributed to the French Republic.

14.

Pillaging and destroying goods from other Member States is one of the most serious forms of restriction on imports imaginable. It is nothing short of the negation of free movement of goods. It is of no importance in this context whether the goods in question are destroyed whilst in transit or only after they have reached the market in France. The other acts which, according to the particulars submitted by the Commission and not disputed by the defendant, the persons concerned committed appear no less objectionable. Threats issued against lorry drivers carrying out transport operations directly obstruct the free movement of goods. Anyone who has to be prepared for the fact that his lorry is liable to be attacked on account of its carrying certain goods will be inclined to refrain from transporting them. The same applies to threats issued against traders in France offering for sale goods from other Member States. If having on sale goods from other Member States entails the risk of violent attacks, a trader will carefully consider whether he wishes to continue offering those goods for sale.

15.

The Commission further and correctly argues that the climate of insecurity and uncertainty produced by those violent disturbances constitutes an obstacle to the free movement of goods. Thus, for example, even a trader in an area where such attacks have not yet occurred will also reckon with the possibility of such a risk and will therefore refrain from procuring the goods concerned. Quite generally, a trader who has to reckon with the possibility that goods ordered by him will not reach him or will not be delivered in time on account of the incidents described, will take that into consideration when he has to decide from which source he should obtain his goods. That also applies to businesses in other Member States since the acts of violence also involves the destruction of goods not intended for the French market but for other Member States. In that respect, it is possible to speak of indirect consequences for the free movement of goods. However, such indirect obstructions are also prohibited under Community law. ( 9 )

16.

In its rejoinder the defendant has argued that the incidents in question ‘did not really affect’ the marketing of Spanish strawberries in France since the quantity of strawberries imported in the months particularly concerned, April and May, remained more or less identical. In view of the seriousness of the incidents, that argument can only be described as surprising. At the same time, however, the defendant has noted that the argument put forward by it is, in principle, irrelevant in the light of the Court's case-law on Article 30. In that respect, I can only agree with the defendant. It is beyond question that the violent acts at issue here directly obstructed imports of goods from other Member States. The fact that the volume of those imports may nevertheless have remained constant is therefore irrelevant. Moreover, it equally cannot be ruled out that those imports would have reached a higher volume if the acts of violence in question had not occurred.

At the hearing before the Court, the French Government's representative stated that, in 1994, of 170000 tonnes of strawberries imported into France from Spain, only eight tonnes were destroyed, which was equivalent to 0.005%. However, that does not in any way alter the fact that the acts of violence directly obstructed imports of goods from other Member States. The seriousness of the incidents alone means that no importance whatsoever can be attached to the fact that the volume of goods actually destroyed may have been relatively insignificant. That is especially true in light of the fact that it is not only the acts of destruction themselves, but also the climate of insecurity and uncertainty which they produce, which obstruct the free movement of goods. ( 10 )

17.

In its statement in intervention, the United Kingdom Government has correctly maintained that, according to the case-law, for an administrative practice to constitute a measure prohibited under Article 30 ‘that practice must show a certain degree of consistency and generality’. ( 11 ) That is hardly open to doubt in this case in view of the fact that the incidents have been constantly recurring over a period of years.

18.

If it had to be presumed that those obstacles to the free movement of goods were attributable to the defendant, ( 12 ) the issue of possible justification would arise.

19.

In its defence the French Republic has drawn attention to the social and economic context in which the incidents in question arose. For almost ten years, the French market in fruit and vegetables experienced considerable disruption due, in particular, to the intensified competition from Spanish products faced by national producers. With regard to strawberries, for example, Spanish exports rose from 1000 tonnes in 1975 to 108000 tonnes in 1992, that is, more than a hundredfold. Exports to France alone grew from 6000 tonnes in 1980 to an average of 42000 tonnes between 1990 and 1993 and reached approximately 50000 tonnes in 1994. French strawberry production, on the other hand, stagnated from 1991 onwards at 82000 tonnes. The movement of exchange rates further exacerbated those problems. Thus, the exchange rate of the Spanish peseta in 1995 was 28% below what it had been between 1990 and 1992.

20.

The defendant has made further submissions on this subject in its rejoinder. It counters the Commission's objection, raised in its reply, that the rise in Spanish exports was much more likely to have been-attributable to the end of the transitional period and the associated abolition of restrictions on trade, by saying that the incidents cited in the Commission's application occurred before the end of the transitional period. The instruments provided for in respect of that period had proved inadequate. In this connection, it points out that Article 81 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (hereinafter ‘the Act of Accession’) introduced a ‘supplementary mechanism applicable to trade’ which was intended to apply to fruit and vegetables from 1 January 1990 until 31 December 1995. Article 83 of the Act of Accession provided for the fixing of certain ‘indicative ceilings’. Under Commission Regulation (EEC) No 3944/89 of 20 December 1989 laying down detailed rules for applying the supplementary trade mechanism to fresh fruit and vegetables, ( 13 ) the Commission was entitled to lay down, for the products concerned, certain periods to be regarded as ‘sensitive’ (period II) or ‘very sensitive’ (period III). The laying down of such periods gave rise to a certain checking by the Commission of the quantities exported from Spain.

21.

However, it is unnecessary in this case to undertake a more detailed examination of that checking mechanism and its application in practice. In its response to the statement in intervention of the Kingdom of Spain, the defendant has stated that it does not dispute the correctness of the figures submitted to the Commission by that intervener. It concedes that they show that Spanish exports during the transitional period did not, by and large, exceed the ceilings fixed. However, it contends that the instruments for which Community law provided in respect of that period related solely to the volume of Spanish strawberry exports. There was, however, no mechanism for monitoring the prices charged for that product. Yet pricing was the key issue underlying the French producers' discontent. The Spanish suppliers, whose produce reached the French market earlier than the national products, charged very high prices on that market initially but lowered their prices very substantially as soon as competition began to make itself felt. The defendant describes that adaptation of prices as a ‘downright devaluation’.

22.

At the hearing before the Court, the defendant Government's representative sharpened those criticisms still further. Certain practices adopted by Spanish producers constituted ‘sheer provocation’. The Spanish producers were guilty of unfair actions which were ‘indisputably’ to be regarded as ‘dumping’ and were destabilizing the entire French market, a state of affairs which prevented the national producers from selling their goods.

23.

I have given a detailed — although by no means exhaustive ( 14 ) — account of those arguments above because the defendant attaches particular importance to the issues connected with them. The French Government's representatives have, it is true, always expressly emphasized that they are not of the view that the circumstances in question could justify the violent disturbances which occurred. However, they have expressed the opinion that the practices of which they accuse the Spanish producers could help to explain the actions of the French farmers.

24.

It does not seem to me to be possible, solely on the basis of the considerations pleaded in these proceedings, to form a definitive opinion on the severity of the economic difficulties faced by the farmers in the south of France and on whether the defendant's contention, put forward at the hearing, that those farmers are a particularly ‘vulnerable’ section of the population is correct. It should be noted, however, that the Commission has not contradicted those statements by the French Government's representative. I shall therefore assume below, in the defendant's favour, that the farmers in the south of France did indeed face serious economic difficulties.

25.

Nor is it possible to decide whether the practices adopted on the French market by the Spanish strawberry producers were as offensive as the defendant maintains. It appears that at least some farmers in the south of France are finding their livelihood threatened by cheap imports from other Member States. However, the Commission has argued in this connection that it would be an exaggeration to ascribe the difficulties experienced by the farmers in the south of France solely to currency fluctuations. The explanation for the success of the Spanish producers must, instead, lie primarily in structural and climatic factors. It should be recalled in this connection that the French Government itself has stated that Spanish strawberries reach the French market earlier than local products. In so far as the Spanish producers merely availed themselves of those clearly existing advantages in order to promote their sales, they would be acting in conformity with the market and using the freedoms guaranteed by the Treaty precisely for the purpose envisaged by it. Anyone who is in a position, by virtue of specific circumstances, to produce more cheaply and efficiently than his competitors and is therefore able to offer his products for sale at a more favourable price than the latter cannot be accused, merely on that account, of unfair practices or even of dumping.

26.

However, even if the complaints made by the French Government's representative against the Spanish producers were true, the obstruction of imports could not be regarded as lawful.

27.

Firstly, it should be pointed out that the arguments developed by the defendant refer only to imports of strawberries from Spain. However, as is clear from the Commission's application, its complaints concern not only that product, but other products as well. ( 15 ) Moreover, they also concern measures against imports from Member States other than Spain. ( 16 ) The defendant has not attempted to explain why the French farmers also took action against those imports.

28.

Secondly, it should be noted that the violent disturbances also affected goods which were intended for other Member States. The Spanish Government's representative drew attention to this fact once again at the hearing. It is not clear how the attacks on those goods can be accounted for, let alone justified, by the difficult situation on the French market.

29.

Thirdly, it should be observed that the explanation offered by the French Government for the incidents in question lies in the economic difficulties of certain French farmers. However, the Spanish Government has quite rightly pointed out that, according to the Court's case-law — on Article 36 of the EC Treaty, it should be added — considerations of an economic nature may not be relied on as justification for restrictions on the free movement of goods. ( 17 ) The Commission's representative also reemphasized this point at the hearing. The United Kingdom Government seems to wish to express a similar idea when it states that a Member State may not rely, in the context of proceedings under Article 169, on any special characteristics of its agriculture industry.

30.

However, it seems to me that most importance is to be attached to another idea of a fundamental nature. If imports of fruit and vegetables from other Member States were actually jeopardizing the economic existence of certain farmers in France, it was for the responsible authorities to find a solution to that problem. Since the common agricultural policy falls within the Community's competence, action by the Community's competent institutions was required. In line with that analysis, the Commission's representative stated at the hearing before the Court that a solution to the French farmers' problems had to be found in another context.

In this connection, it is perhaps of interest to draw attention to the judgment which the Court gave on the action brought by the Federal Republic of Germany against the regulation on the common organization of the market in bananas. In that judgment, the Court pointed out that one of the objectives of the Community legislature in that case was to reconcile the conflicting interests of certain Member States. According to the Court, one of those interests consisted in the concern of some Member States ‘that their agricultural population living in economically less-favoured regions should be able to dispose of produce of vital importance for them and thus avoid social problems’. ( 18 )

31.

The defendant has, it is true, pointed out in its rejoinder that it has been trying for years to bring about an appropriate reform of the common organizations of the markets in fruit and vegetables. In my opinion, however, it may not rely on the fact that no such measures have yet been adopted. As long as no such changes have taken place, a Member State is precluded from taking action against persons who abide by the legislation in force.

32.

That is confirmed by a judgment of the Court dating from 1979, which has some points of contact with the present case. It concerned imports of mutton and lamb from the United Kingdom, which France was preventing by applying a restrictive system to those imports. The French Government did not dispute that that system was an obstacle to the free movement of goods. However, it referred to the ‘serious social and economic effects’ of discontinuing that system. At the same time, it drew attention to the progress made in the work being carried out with a view to setting up a common organization of the market in mutton and lamb. ( 19 )

The Court stated that it was fully aware of the problems of that sector in France. However, that sphere was now the responsibility of the Community, ‘so that, although it is still necessary to take special measures, a decision to adopt them can no longer be made unilaterally by the Member States concerned; they must be adopted within the Community system’. The fact that the work involved in this had not been brought to a successful conclusion ‘was 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’. The argument that the United Kingdom, for its part, had maintained a national organization of the market in the same sector was also rejected. France had the opportunity to take action against that system, ‘either within the Council, or through the Commission, or finally by recourse to judicial remedies with a view to achieving the elimination of such incompatible features. A Member State cannot under any circumstances unilaterally adopt, on its own authority, corrective measures or measures to protect trade designed to prevent any failure on the part of another Member State to comply with the rules laid down by the Treaty.’ ( 20 )

33.

AU that is ultimately the consequence of the fact that the European Community is a ‘Community based on the rule of law’, ( 21 ) in which disagreements and disputes must be settled by recourse to law. That means that such controversies are dealt with through the channels made available by Community law and, at last instance, settled by a court, in this case the Court of Justice. However, it is not only unilateral measures — such as import prohibitions, for example — adopted in a legal form by Member States which are incompatible with a community of that nature. The same applies a fortiori to acts of violence and arbitrary acts. If violence were also allowed as a means of achieving certain economic and political objectives, the rule of law would be replaced by the rule of force. That would also mean the end of the Community.

34.

As I have already stated, the Court has not expressly dealt with this issue up to now. I am, however, of the opinion that a judgment given in 1995 in an action brought by the Commission against the French Republic for failure to fulfil oblgations takes the same basic idea as its starting-point. ( 22 ) That case concerned the fisheries sector. The French Republic had been granted certain anchovy catch quotas for the period in question. The French fishing vessels had substantially exceeded those quotas but the French authorities had taken no action against them, although they were obliged to do so under the relevant provisions of Community law. The French Republic argued in its own defence, inter alia, that ‘the socioeconomic climate during the anchovy fishing year was so difficult that there was a risk of major disorders likely to give rise to serious economic problems. The competent authorities were thus forced to refrain from taking action against the persons responsible for infringements’. ( 23 ) The Court did not accept that argument. The ‘mere apprehension of internal difficulties cannot justify a failure to apply the rules in question.’ ( 24 )

Advocate General Fennelly expressed himself much more plainly in that case:

‘I believe that such an approach to the enforcement of Community legislation by a Member State is manifestly unacceptable. ... Article 5 of the Treaty imposes a strict duty of cooperation on Member States to adopt all measures necessary to attain the objectives of the Treaty.

[32] It follows, in my opinion, that, where Member States are specifically charged with the enforcement of Community law they are obliged to utilize all their State apparatus, including, if necessary, their police powers to ensure the fulfilment of their obligations.’ ( 25 )

In my opinion, that also applies to the Member States' general obligation arising from Article 5 to ensure the fulfilment of their obligations under the Treaty.

35.

For all those reasons, therefore, if the acts of violence committed by private individuals in France against imports from other Member States could be attributed to the French Republic, they could on no account be justified.

36.

The key issue in these proceedings must therefore now be resolved, namely, whether the French Republic can be held responsible for those disturbances and acts of violence.

37.

At the hearing before the Court, the French Government's representative submitted that, in this context, the principle which applied was that a Member State is not responsible for the behaviour of individuals. That principle applied both in Community law and in international law. There was, however, an exception to that principle. A Member State could be held responsible for the conduct of private individuals under its sovereignty if it was in breach of the ‘duty of vigilance and care’ incumbent upon it.

38.

In fact, it seems that, under public international law, the responsibility of a State can be taken into account only if that State has failed to exercise, with regard to the conduct of individuals, the ‘due diligence’ ( 26 ) incumbent upon it.

39.

However, in my opinion, this matter does not need to be considered in more detail here, since Community law offers, in Article 5 of the Treaty, a provision from which it may be seen that this problem is governed by a particular set of rules in the Community sphere.

40.

That provision imposes on Member States; first of all, a general ‘obligation of loyal cooperation and assistance’ towards the Community. ( 27 ) In this case, it is not evident that the defendant infringed that general obligation. Consequently, on the basis of Article 5 considered in isolation, the Commission's action would have as little prospect of success as it would on the basis of Article 30 alone. ( 28 )

41.

However, Article 5 of the EC Treaty also imposes particular duties with regard to the obligations arising out of Community law (first paragraph) and with regard to the attainment of the objectives of the Treaty (second paragraph). If that provision is read in conjunction with Article 30 (and the obligations arising from the common organizations of the markets), there results, in my opinion, an obligation for Member States to take ‘all appropriate measures, whether general or particular’ to protect the free movement of goods. That applies also, and in particular, to the protection of the freedom in question against attacks by private individuals.

42.

That interpretation is borne out, on the one hand, by the Court's case-law and, on the other, by Articles 85 and 86 of the EC Treaty. The case-law in question concerns a situation which is virtually the mirror image or opposite of the circumstances of this case.Articles 85 and 86 in themselves concern only the conduct of undertakings, that is, of private persons. However, it is settled case-law that Articles 85 and 86 in conjunction with Article 5 of the Treaty require the Member States to refrain from introducing or maintaining in force measures which ‘may render ineffective the competition rules applicable to undertakings’. ( 29 ) In a line of judgments it is made clear that this statement of the law refers to the second paragraph of Article 5 and the duty to abstain laid down in that provision. ( 30 ) Those cases therefore relate primarily to duties which apply to private individuals. In order to ensure the practical effectiveness of the provisions establishing those duties, however, the Court has held that Community law also prohibits measures taken by Member States which would ultimately result in the same disadvantageous consequences for the protected legal interest (in this case, competition) as the actions of private individuals. For that reason, Member States are obliged to abstain from such measures.

43.

That logic can also be applied to the situation which exists in this case. Article 30 ( 31 ) prohibits measures by the Member States which could jeopardize the free movement of goods. As the present case clearly shows, however, the free movement of goods can also be jeopardized by actions committed by private individuals. It is therefore necessary, for the protection of the practical effectiveness of Article 30, to infer from the Treaty a duty for Member States to combat such actions by private individuals. Such a duty is, of course, an obligation to act, that is, an obligation arising from the first paragraph of Article 5.

To all appearances, that interpretation also underlies the action brought by the Commission, even though the Commission does not give any further explanation in that regard. It seems to me that the United Kingdom Government also shares that view, although the mode of expression chosen by it — it refers to obligations under Article 30 and Article 5 — would also allow of another interpretation. ( 32 )

44.

That such an interpretation is by no means alien to Community law is, in my opinion, implicit from a judgment given in 1995. ( 33 ) That case concerned an international road station operated by a private company (hereinafter ‘Garonor’) near Paris. The customs authorities also had offices there at which all the formalities normally completed at State frontiers could be carried out. Garonor leased offices and other facilities to forwarding agents. In addition to the rent,Garonor also levied a ‘transit charge’, provided for in the respective agreements, for each individual vehicle. According to the findings of the national court, a substantial proportion of that charge was intended to cover costs arising from the performance of tasks in the public interest. The Court came to the conclusion that such a charge was contrary to Articles 9 and 12 of die EC Treaty. It attached no importance to the fact that, in that case, the charge in question was levied by a private undertaking:

‘Whether the pecuniary charge is borne by the economic agent by virtue of a unilateral measure adopted by the authorities or, as in the present case, as a result of a series of private contracts, it arises in all cases, directly or indirectly, from the failure of the Member State concerned to fulfil its financial obligations under Articles 9 and 12 of the Treaty.’ ( 34 )

The solution suggested by Advocate General La Pergola, that the transit charge in question was not a charge within the meaning of Articles 9 and 12, but that the Member State had infringed its obligations under those articles in conjunction with {inter alia) the second paragraph of Article 5, ( 35 ) appears even more convincing. In any event, however, the judgment shows that, subject to certain conditions, responsibility for the conduct of private individuals can be attributed to a Member State also in the sphere of the free movement of goods.

45.

The parallel which I have drawn with the Court's case-law on Articles 85 and 86 of the EC Treaty can, moreover, be extended even further. The effect of Articles 85 and 86 read in conjunction with Article 5 is not that a Member State should abstain from all measures which could jeopardize competition. Rather, it infringes those provisions only where (with regard to Article 85, for example) it ‘requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects, or where it deprives its own rules of the character of legislation by delegating to private economic operators the responsibility for taking decisions affecting the economic sphere’. ( 36 ) Consequently, in the sphere at issue in the present case, namely, the free movement of goods, it will not be permissible to require a Member State to guarantee a certain result (‘obligation de résultat’). However, as the Commission's representative put it at the hearing before the Court, it will at least be necessary to require it to take the steps necessary for the attainment of that objective. In other words, the Member State will have to be required to take ‘all appropriate measures, whether general or particular’ in order to achieve that result (‘obligation de moyens’).

46.

It must therefore be examined whether France has fulfilled that obligation in this case.

47.

As the Commission has stated, a Member State faced with such a situation has, in principle, two ways in which it can protect the free movement of goods against attacks by private individuals. First, it has the possibility, by deploying its forces of law and order, that is, in particular, its police, of taking action directly to deal with such attacks, whether by preventively protecting the targets of those attacks or by deploying its resources to combat such attacks as soon as they occur. Such action can be described, to adopt the phrase used by the Commission, as preventive measures. However, a Member State also has the possibility of bringing to account afterwards the perpetrators of such attacks by deploying the resources of the criminal law against them. Such action can be succinctly described as penal measures.

48.

I agree with the Commission that neither it nor any other Community institution can prescribe what measures a Member State should apply in any specific case in order to protect the free movement of goods. That decision is a matter for the Member State concerned alone. In that regard, the view expressed by the French Government's representative at the hearing before the Court, that the Court must not encroach upon the Member States' discretion in the field of the preservation of public order and security by substituting its own assessment for that of the Member State concerned, is also fully justified.

49.

However, in so far as the warning sounded on that occasion should be understood as meaning that the defendant is of the view that, in this ‘highly political’ sphere, as the French Government's representative put it, the Court is not entitled to undertake any supervision whatsoever, that view should be firmly refuted. It is for the Member State concerned to decide what resources it deploys to avert threats to the free movement of goods stemming from the actions of private individuals. However, the Court has the power to verify whether the Member State has taken all necessary and proportionate measures in that regard. It is true, however, that, as the United Kingdom has stated, it would probably only be in exceptional cases that a Member State could be said to be in breach of its obligations in that sphere. In order to take account of the discretion which Member States undoubtedly have, it will in fact be possible to accept the existence of a failure to fulfil the obligations under Article 30, read in conjunction with Article 5, only when it is clearly and unambiguously established that a Member State has not taken all necessary and proportionate measures to protect the free movement of goods from acts of violence committed by private individuals.

50.

Such a situation does, however, exist in this case.

51.

With regard, firstly, to the question of preventive measures, the Commission complains that the defendant's police forces did not always intervene with the necessary speed and diligence. At the time of the incidents in April 1995, for example, those forces did not intervene at all in some cases, which may have been attributable either to inadequate resources or else to intentional passivity. At the hearing, the Commission drew attention to another incident, in June 1994, which took place in the Marseilles area and involved some 200 demonstrators. On that occasion the forces of law and order were not deployed although they were certainly standing by in sufficient numbers. In addition, the Commission complains that the French authorities failed to make adequate use of the information available to them about imminent attacks. It concludes from all those factors that the response of the French authorities is inadequate in structural terms.

52.

The defendant, on the other hand, has already maintained in its defence that the government instructed the authorities, in a number of telegrams, to take all appropriate surveillance and protection measures to protect importers and traders. Moreover, it consistendy condemned the acts of violence. As far as the events which occurred in April 1995 are concerned, the French authorities could not be accused of having acted in an intentionally passive way. In its rejoinder the defendant has further argued that mobile units, which could intervene if necessary, were put on standby in the areas of the country particularly at risk. At the hearing before the Court, the French Government's representative gave further details of those efforts and provided figures on the deployment of forces of law and order in 1997.

In its rejoinder the defendant stated that consideration had also been given to providing individual lorries with a French police escort from the frontier onwards. However, at the hearing it explained that such individual protection would have been impossible on account of the large number of shipments being transported.

53.

The defendant draws attention, in particular, to the difficulties encountered in the deployment of police, instancing the tactics employed by the demonstrators, of striking unexpectedly and quickly, which made intervention extremely difficult. For example, the attack which took place on 3 June 1995 in Salon-de-Provence lasted ten minutes; the attackers had then fled immediately. Moreover, that incident showed that the demonstrators were extremely mobile. Those two factors and the severe imbalance of forces between the demonstrators and the police made any intervention by the latter impossible and also allowed no time to bring up reinforcements.

54.

Finally, the defendant argues that the police authorities should have a margin of discretion in performing their delicate task of protecting public order and security. It must be possible for them to refrain from intervening to deal with violent disturbances where such intervention would entail even greater or more serious risks to those protected legal interests. That power is, moreover, recognized in the case-law of the French courts.

55.

All those arguments are incapable, in my opinion, of refuting the Commission's complaints.

56.

As the Commission's representative rightly argued at the hearing, it is not the size of the forces of police put on standby which is important, but whether those forces actually took action. Nor is the existence of instructions, which the Commission has not disputed, crucial. The decisive factor is, rather, whether and how those instructions were applied in practice.

57.

In this regard, there are many factors which indicate that the defendant did not adopt all necessary and proportionate measures.

58.

Both the Kingdom of Spain and the United Kingdom rightly point out that those violent disturbances have now been occurring for over a decade. It is clear from the facts that certain months in particular are affected. Some places also seem to be especially vulnerable. One can only be surprised that a State such as France should find itself unable to take effective precautions against such disturbances. That is particularly true since, on several occasions over the years, the Commission has called on the defendant to take vigorous action to deal with those incidents. Moreover, — although it does not, of course, have any material bearing on these proceedings — it was clearly apparent from the hearing before the Court that nothing has yet changed with regard to that situation. The Spanish Government's representative enumerated a whole series of further such incidents which have occurred during the last few weeks.

59.

The difficulties involved in combating such disturbances, which the defendant has described, certainly exist and, moreover, are not denied by the Commission. However, it cannot seriously be maintained that those difficulties would make it impossible for the police to intervene in all cases.It is perhaps no coincidence that the defendant has given definite details about only one of the incidents mentioned by the Commission, namely, that which occurred on 3 June 1995 at Salon-de-Provence. Let us look at some of the other incidents. On 19 April 1994 an attack involving some 150 persons took place at the St-Jean-de-Védas toll booths. ( 37 ) Unlike the incident at Salon-de-Provence, this attack lasted, not ten minutes, but two-and-a-half hours. Clearly, the special intervention forces mentioned by the defendant were not on the spot. But would it really have been impossible to intervene using the available police or, if necessary, to bring in reinforcements? Two weeks later another attack occurred at the same place. The police present did not intervene effectively. ( 38 ) Were they not in a position to stand up to the demonstrators? A press article from June 1994 shows that, during incidents near Marseilles, substantial numbers of police were present but that they did not intervene. For what reasons did those forces hold back? The defendant has offered no answer to any of those questions, and they relate to only a few of the incidents.

60.

In this context, it must be borne in mind in particular that, in at least one of the cases mentioned by the Commission, the authorities had prior information about imminent violent disturbances. That is clear, as the Commission has stated without being contradicted by the defendant, from a letter of 19 April 1994, according to which protest actions were to take place as early as the following day. In that regard, the letter of 6 May 1994 cited by the Commission, in which the French authorities claim that those disturbances were ‘difficult to foresee’, is indeed remarkable. Moreover, it should again be pointed out that the events in question were not isolated incidents, but disturbances which, as the Spanish Government's representative stated at the hearing, are recurring year after year at the same time.

61.

The defendant's contention that it took all necessary and proportionate measures in this case is also not borne out by the actions of the French Government itself. The defendant has mentioned no public statement by the French Government condemning the incidents in question. The defendant's representative merely pointed out at the hearing that the President of the French Republic had publicly apologized to the Spanish Prime Minister on the occasion of the European Council in Noordwijk. ( 39 ) In its application the Commission mentions a statement by the French Minister for Agriculture at that time, in which, although disapproving of the attacks, he did not contemplate any intervention by the police in order to put a stop to them. ( 40 )

That statement calls into question the effectiveness of the instructions given to the authorities, which have been mentioned by the defendant. In view of the Government's silence or the aforementioned expression of that attitude by a member of the Government, could the subordinate authorities really be expected to act vigorously, without exception, to deal with those violent disturbances? As a precaution, it must be observed here that the defendant has not disputed the fact of that statement. In response to my question at the hearing before the Court, the French Government's representative was not in a position to comment on that statement.

62.

I certainly agree with the defendant when it contends that the police authorities are entitled to refrain from using force to deal with such violent disturbances if such force would entail even greater risks to public order and security. The Commission also accepts that principle which, in my opinion, constitutes a general principle of law governing policing and public order. However, the Commission has rightly pointed out that the Court, in its case-law on Article 36 of the EC Treaty, has always imposed strict requirements whenever the protection of public order and security is invoked as justification for restricting the free movement of goods. In that regard, the burden of proof lies on the Member State. Thus, for example, in the judgment in the Cuttet v Ledere case cited by the Commission, the Court rejected a similar line of argument that ‘violent reactions’ would otherwise have to be anticipated on the part of certain traders on the ground that the French Government had not shown that ‘it would be unable, using the means at its disposal, to deal with the consequences’ which an amendment of the French rules in accordance with Community law‘would have upon public order and security’. ( 41 ) That case-law can also be applied to the circumstances of the present case.

63.

The Commission has also quite correctly stated that such justification may apply in individual cases, but not in a completely general way. Otherwise, the paradoxical consequence would arise that a threat to public security and order (namely, the violent disturbances) would have to be approved and accepted in order to safeguard precisely those protected legal interests. In this context, I can only concur with the opinion of Advocate General VerLoren Van Themaat, which the Commission also cited at the hearing:

‘However, I would add that the acceptance of civil disturbances as justification for encroachments upon the free movement of goods would, as is apparent from experiences of the last year (and before, during the Franco-Italian “wine war”) have unacceptably drastic consequences. If roadblocks and other effective weapons of interest groups which feel threatened by the importation and sale at competitive prices of certain cheap products or services, or by immigrant workers or foreign businesses were accepted as justification, the existence of the four fundamental freedoms of the Treaty could no longer be relied upon. Private interest groups would then, in the place of the Treaty and Community (...) institutions, determine the scope of those freedoms. In such cases, the concept of public policy requires, rather, effective action on the part of the authorities to deal with such disturbances.’ ( 42 )

64.

The defendant has also contended that the power of the police authorities to refrain, where appropriate, from intervening to deal with those violent disturbances is balanced by the compensation which the French State pays to the victims of such incidents. That payment represents a liability to render compensation which is based on a statutory obligation but does not presuppose any fault on the part of the State authorities. In total, according to the defendant, FF 17 million have already been paid out in respect of the years 1993 to 1995.

65.

This aspect can be dealt with briefly. The French Government's representative himself conceded at the hearing before the Court that the compensation payment in question could not by any means constitute redress for the restrictions on the free movement of goods. However, it probably constitutes a gesture of the good will which the defendant has reaffirmed on several occasions during the proceedings. The question whether the compensation granted covers all the losses sustained, a point on which the Spanish Government in particular has cast doubt with regard to consequential losses, ( 43 ) can be left open here. As the Commission has rightly stated, the compensation for losses by the French State may also have negative consequences. In fact, it would be quite natural for such compensation to give or to reinforce the impression among those responsible for the disturbances that they would not be called to account for their acts. The loss is being borne, not by them, but by the State. In so far as that would constitute an incentive to repeat those acts, the arrangement, undoubtedly well intended in itself, would actually have a ‘perverse effect’, as the Commission acknowledges.

66.

Under those circumstances, there can hardly be any doubt, in my opinion, that the defendant failed to take all necessary and proportionate measures to prevent such acts of violence or to combat them direcdy. In order to prevent misunderstandings, it should again be stressed here that the defendant is not required to ensure absolute protection of the free movement of goods. It would, of course, be impossible for a Member State to protect imports from other Member States completely against attacks by private individuals. Moreover, as the United Kingdom Government has rightly stated, a Member State should not be required to devote unlimited resources to ensuring such protection. However, a Member State can be required to take whatever steps are necessary and proportionate in that regard. Such steps are lacking here.

67.

In its rejoinder the defendant has argued that, in this case, it took all measures to prevent (and punish) the offences in question, and that it did so in a manner comparable with that applicable to infringements of national law which are ‘of similar nature and significance’. It is not easy to see what comparable situations the defendant had in mind here. However, if this was intended as a reference to the way in which the French authorities have reacted to protest rallies held by certain groups against their own government, ( 44 ) that argument would have to be refuted. Article 30 of the EC Treaty (in conjunction, where appropriate, with Article 5) requires the Member States to protect the free movement of goods. However, the conditions applicable to that free movement must be determined, in all Member States, by the Treaty, that is, they must be identical. Consequendy, a Member State may not rely on its national policies, and thus on national particularities, in order to justify restrictions on that free movement. Otherwise, the meaning of the rules on the free movement of goods would no longer be determined by the Treaty, but by the policies of the Member State concerned.

68.

The Commission is of the opinion that, in cases such as this, a Member State can also discharge its obligations arising from Article 30 in conjunction with Article 5 by taking effective penal measures. If it proves too difficult to achieve a satisfactory result by means of preventive measures, the Member State concerned must ensure that criminal prosecutions are effectively conducted.

69.

In my opinion, it would not suffice if a Member State allowed such acts of violence to occur without intervening and confined itself to taking penal measures. Such an interpretation would not be in keeping with the special importance with which the free movement of goods (and the other fundamental freedoms) are invested. However, even if one takes as a basis the view which has been expressed by the Commission, and which is more favourable to the defendant, one would have to conclude that the Commission's action is well founded. In terms of penal measures also, the defendant did not in fact do all that was necessary and proportionate in order to comply with its obligations.

70.

The Commission is of the opinion that the competent French authorities have not taken adequate steps to penalize the acts of violence which are at issue in this case. As far as the acts committed during the period from April to August 1993 are concerned, there has been only one investigation, and that was discontinued. In its application it asserts that the same is also true of the subsequent period. Overall, there has been only one conviction (which, admittedly, affected several persons at once).

71.

In its own defence, the defendant objects that prosecution is difficult. In its rejoinder it states that the incidents in question have been systematically investigated. If, nevertheless, only few criminal proceedings have resulted in convictions, that is due to certain difficulties inherent in the case. It has in fact been difficult to establish the precise identity of those involved or to prove their involvement in the criminal acts. In that respect, it should be noted that the presumption of innocence applies in France and that the individual responsibility of a person for a particular act must be established. The same difficulties are also encountered in prosecuting other criminal acts of a collective nature committed in France.

72.

At the hearing before the Court, the French Government's representative stated that, since 1994, six further persons had either been convicted or had criminal proceedings instituted against them.

73.

In considering whether appropriate penal measures have been adopted in this case, it is certainly necessary, as the United Kingdom rightly observes, to exercise even more restraint than in relation to the question of whether adequate preventive measures were taken. This is, after all, a matter not only of State prosecuting authorities who were bound by instructions but, ultimately, independent courts. Nevertheless, I am of the opinion that, in this respect also, the defendant failed to adopt all necessary and proportionate measures in order to protect, in that way, the free movement of goods against violent acts by private individuals.

74.

Both the Commission and the two States which have intervened in support of the form of order sought by it rightly point out that many of the incidents which fall for consideration in this case are documented on film. The Spanish Government has submitted some of those recordings together with its statement in intervention. The view expressed by the defendant, that those recordings are evidence like any other but that they still do not, on their own, constitute legally conclusive proof, is correct. One wonders, however, why, despite the existence of that evidence, only a very small number of prosecutions have been brought.

75.

Those questions become even more compelling if it is borne in mind that, according to the Commission's uncontroverted statements, the persons involved in the violent disturbances often make no attempt to disguise their identity. Moreover, on various occasions, forces of police were present but did not, or did not seriously, intervene in order to prevent the acts of violence. One has to share the Commission's uncertainty as to why those forces did not then at least do more to arrest the offenders or at least did not secure sufficient evidence to have enabled a prosecution to take place.

76.

If those considerations are of a rather general nature, at least one fact nevertheless remains which, in any event, shows that, in this respect also, the defendant failed to take sufficient action. It is clear from the facts of the case that threats were made, and also carried out, by individuals and groups such as ‘Coordination Rurale’. The Commission has rightly stated that those persons were either known to the authorities or could have been identified by them. At least as far as those persons were concerned, the difficulties described by the defendant could not, therefore, have been so very significant. Nevertheless, in this respect also, it would appear that little action was taken.

The French authorities therefore also failed to prosecute those offences with the necessary vigour.

77.

The Commission's action is therefore well founded in its entirety.

78.

The decision as to costs should be made in accordance with Article 69(2) and (4) of the Rules of Procedure of the Court.

79.

I therefore propose that the Court should declare that, by failing to take all necessary and proportionate measures to prevent the actions of individuals from hindering the free movement of fruit and vegetables, the French Republic has failed to fulfil the obligations arising from the common organizations of the markets in agricultural products and from Article 30 in conjunction with Article 5 of the EC Treaty.

I also propose that the French Republic should be ordered to pay the costs, excluding those incurred by the Kingdom of Spain and the United Kingdom, which those Member States themselves should bear.