61978J0232

1 . PROCEDURE - APPLICATION ORIGINATING PROCEEDINGS - SUBJECT-MATTER OF DISPUTE - ALTERATION DURING PRODEEDINGS - PROHIBITION

( RULES OF PROCEDURE , ART . 38 )

2 . ACCESSION TO COMMUNITIES OF NEW MEMBER STATES - ACT OF ACCESSION - AGRICULTURE - PROVISIONS ON ABOLITION OF RESTRICTIONS ON INTRA-COMMUNITY TRADE - DEROGATION IN ARTICLE 60 ( 2 ) - TEMPORAL APPLICATION

( ACT OF ACCESSION , ART . 60 ( 2 ))

3 . AGRICULTURE - NATIONAL ORGANIZATION OF THE MARKET - TRANSITIONAL PERIOD - EXPIRATION - PROVISIONS ON ABOLITION OF RESTRICTIONS ON INTRA-COMMUNITY TRADE - FULL EFFECT - PROHIBITION

4 . MEMBER STATES - DUTIES - UNILATERAL ACTION - PROHIBITION

1 . UNDER ARTICLE 38 ( 1 ) OF THE RULES OF PROCEDURE THE PARTIES ARE REQUIRED TO STATE THE SUBJECT-MATTER OF THE DISPUTE IN THE DOCUMENT ORIGINATING THE PROCEEDINGS . IT FOLLOWS THAT EVEN THOUGH ARTICLE 42 OF THE RULES OF PROCEDURE ALLOWS FRESH ISSUES TO BE RAISED IN CERTAIN CIRCUMSTANCES A PARTY MAY NOT ALTER THE ACTUAL SUBJECT-MATTER OF THE DISPUTE DURING THE PROCEEDINGS .

2 . ARTICLE 60 ( 2 ) OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES CEASED TO HAVE EFFECT AT THE END OF 1977 .

3 . 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 . THE EXPIRATION OF THE TIME-LIMITS FOR THE TRANSITION IMPLIES THEREFORE THAT THOSE MATTERS AND SECTORS SPECIFICALLY ASSIGNED TO THE COMMUNITY ARE 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 WHICH IS DESIGNED TO GUARANTEE THAT THE GENERAL PUBLIC INTEREST OF THE COMMUNITY IS PROTECTED .

THE FACT THAT AFTER THE EXPIRATION OF THE PERIODS REFERRED TO ABOVE THE COMMUNITY HAS NOT YET ADOPTED MEASURES INTENDED TO REGULATE THE MARKET IN AN AGRICULTURAL PRODUCT 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 .

4 . 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 .

IN CASE 232/78

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISERS , R . BERAUD AND P . KALBE , 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 N . MUSEUX , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE AT THE FRENCH EMBASSY , LUXEMBOURG ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE FRENCH REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 12 AND 30 OF THE EEC TREATY ,

1 THE COMMISSION , BY AN APPLICATION LODGED AT THE REGISTRY ON 25 OCTOBER 1978 , BROUGHT BEFORE THE COURT OF JUSTICE , PURSUANT TO ARTICLE 169 OF THE EEC TREATY , AN ACTION FOR A DECLARATION THAT ' ' THE FRENCH REPUBLIC , BY CONTINUING AFTER 1 JANUARY 1978 TO APPLY ITS RESTRICTIVE NATIONAL SYSTEM TO THE IMPORTATION OF MUTTON AND LAMB FROM THE UNITED KINGDOM , HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 12 AND UNDER ARTICLE 30 OF THE EEC TREATY ' ' . THE FRENCH GOVERNMENT ' S PRINCIPAL DEFENCE HAS BEEN THE CONTENTION THAT IT IS ENTITLED , BY VIRTUE OF ARTICLE 60 ( 2 ) OF THE ACT OF ACCESSION , TO MAINTAIN THE IMPORT RESTRICTIONS REFERRED TO AS LONG AS MUTTON AND LAMB ARE NOT COVERED BY A COMMON ORGANIZATION OF THE MARKETS .

2 THE COMMISSION , WITH REFERENCE TO THE JUDGMENT DELIVERED BY THE COURT ON 29 MARCH 1979 IN CASE 231/78 , COMMISSION OF THE EUROPEAN COMMUNITIES V UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND , ( 1979 ) ECR , DURING THE PROCEEDINGS IN THIS CASE , AMENDED ITS CONCLUSIONS DURING THE ORAL PROCEDURE AND REQUESTED THE COURT , WITH DUE REGARD TO THE IDEA UNDERLYING THE JUDGMENT , TO DECLARE THAT THE NATIONAL SYSTEM FOR IMPORTS OF MUTTON AND LAMB MAINTAINED BY THE FRENCH AUTHORITIES WAS INCOMPATIBLE WITH ARTICLES 12 AND 30 OF THE TREATY , IN CERTAIN RESPECTS AS FROM 1 JULY 1977 , IN OTHER RESPECTS AS FROM 1 JANUARY 1975 AND FINALLY , IN YET OTHER RESPECTS , FROM THE DATE OF ACCESSION . IN THE OPINION OF THE COMMISSION IT FOLLOWS FROM THE ABOVE-MENTIONED JUDGMENT THAT ONLY THE NEW MEMBER STATES WERE ENTITLED TO RELY ON THE PROVISIONS OF ARTICLE 60 ( 2 ) OF THE ACT OF ACCESSION AND THAT CONSEQUENTLY , AS FAR AS THE ORIGINAL MEMBER STATES ARE CONCERNED , IT IS WITH REFERENCE TO THE DATES LAID DOWN IN ARTICLES 35 , 36 AND 42 OF THE ACT OF ACCESSION THAT THE COMPLIANCE WITH THE TREATY OF RESTRICTIONS ON IMPORTS APPLICABLE TO PRODUCTS COMING FROM A NEW MEMBER STATE SHOULD BE DETERMINED .

3 THE AMENDED CONCLUSIONS SUBMITTED BY THE COMMISSION DURING THE HEARING ARE INADMISSIBLE INASMUCH AS THEY DO NOT COMPLY WITH THE PROVISIONS OF ARTICLE 38 OF THE RULES OF PROCEDURE . AS PROVIDED FOR IN THAT PROVISION THE PARTIES ARE TO STATE THE SUBJECT-MATTER OF THE DISPUTE IN THE DOCUMENT INSTITUTING THE PROCEEDINGS . EVEN THOUGH ARTICLE 42 OF THE RULES OF PROCEDURE ALLOWS FRESH ISSUES TO BE RAISED IN CERTAIN CIRCUMSTANCES A PARTY MAY NOT ALTER THE ACTUAL SUBJECT-MATTER OF THE DISPUTE DURING THE PROCEEDINGS . CONSEQUENTLY THE SUBSTANCE OF THE APPLICATION MUST BE EXAMINED SOLELY WITH REFERENCE TO THE CONCLUSIONS CONTAINED IN THE APPLICATION INSTITUTING THE PROCEEDINGS , THAT IS TO SAY TO THOSE CLAIMS RELATING TO THE PERIOD SUBSEQUENT TO 1 JANUARY 1978 .

4 IT FOLLOWS FROM THE REASONING ON WHICH THE JUDGMENT OF 29 MARCH 1979 IN THE ABOVE-MENTIONED CASE 231/78 ( COMMISSION OF THE EUROPEAN COMMUNITIES V UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND ) ( 1979 ) ECR IS BASED THAT ARTICLE 60 ( 2 ) OF THE ACT OF ACCESSION CEASED TO HAVE EFFECT AT THE END OF 1977 . CONSEQUENTLY THAT PROVISION DOES NOT APPLY TO THE PERIOD IN RESPECT OF WHICH THE COMMISSION HAS REQUESTED THE COURT TO CONFIRM THE FAILURE OF THE FRENCH REPUBLIC TO FULFIL ITS OBLIGATIONS . IT MUST NOT THEREFORE BE TAKEN INTO CONSIDERATION WHEN DETERMINING THE PRESENT DISPUTE , WHICH MUST BE RESOLVED ON THE BASIS OF THE PROVISIONS OF THE EEC TREATY ALONE , NAMELY ARTICLES 12 AND 30 THEREOF . THE FRENCH GOVERNMENT ' S ARGUMENTS BASED ON THE ACT OF ACCESSION MUST THEREFORE BE EXCLUDED FROM THE CONSIDERATION OF THE DISPUTE .

THE SUBSTANCE

5 IT IS COMMON GROUND THAT IMPORTS OF MUTTON AND LAMB INTO FRANCE ARE SUBJECT TO RULES RESTRICTING IMPORTATION THEREOF BASED ON A ' ' THRESHOLD PRICE ' ' WHICH IS PROTECTED BY A SYSTEM OF IMPORT BANS AND ' ' SURCHARGES ' ' ( ' ' REVERSEMENTS ' ' ). IMPORTS OF MUTTON AND LAMB INTO FRANCE ARE PERMITTED ONLY IF A CERTAIN QUOTED REFERENCE PRICE REACHES OR EXCEEDS THE THRESHOLD PRICE LEVEL . IN ADDITION A ' ' SURCHARGE ' ' , THE AMOUNT WHEREOF VARIES ACCORDING TO THE NATIONAL QUOTED REFERENCE PRICE OF MUTTON AND LAMB ON THE FRENCH MARKET , IS LEVIED ON IMPORTS OF LIVE ANIMALS FOR SLAUGHTER AND OF FRESH OR REFRIGERATED MUTTON AND LAMB CARCASES .

6 THE FRENCH GOVERNMENT DOES NOT DISPUTE THE FACT THAT THIS SYSTEM IS INCOMPATIBLE WITH THE TREATY PROVISIONS RELATING TO THE ELIMINATION OF OBSTACLES TO THE FREE MOVEMENT OF GOODS WITHIN THE COMMUNITY . HOWEVER , WITH A VIEW TO JUSTIFYING THE MAINTENANCE OF THIS SYSTEM AND ITS APPLICATION TO IMPORTS OF MUTTON AND LAMB FROM THE UNITED KINGDOM IT PUTS FORWARD IN SUBSTANCE THREE ARGUMENTS . FIRST IT EMPHASIZES THE SERIOUS SOCIAL AND ECONOMIC EFFECTS ON THE ECONOMY OF CERTAIN ECONOMICALLY LESS-FAVOURED AREAS FOR WHICH SHEEP-REARING IS AN IMPORTANT SOURCE OF WEALTH , OF DISCONTINUING THE NATIONAL ORGANIZATION OF THE MARKET . SECONDLY , IT DRAWS 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 AND STRESSES THE HARMFUL EFFECTS OF INTERPOSING A PHASE OF FREE TRADE BETWEEN THE DISCONTINUANCE OF THE NATIONAL ORGANIZATION AND REPLACING IT BY A COMMON ORGANIZATION . FINALLY IT POINTS TO THE INEQUALITY IN THE FIELD OF COMPETITION DERIVING FROM THE FACT THAT IT WOULD HAVE TO ABOLISH ITS OWN ORGANIZATION OF THE MARKET EVEN THOUGH IN THE UNITED KINGDOM A NATIONAL ORGANIZATION OF THE MARKET BASED ON THE SYSTEM OF ' ' DEFICIENCY PAYMENTS ' ' , WHICH RESULTS IN SUBSIDIZING EXPORTS OF MUTTON AND LAMB TO FRANCE , WOULD REMAIN INTACT IN THE SECTOR UNDER CONSIDERATION .

7 ALTHOUGH THE COURT IS 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 MUST AGAIN DRAW ATTENTION TO THE FACT THAT , AS IT HAS ALREADY STRESSED IN ITS JUDGMENT OF 2 DECEMBER 1974 IN CASE 48/74 , ( CHARMASSON V MINISTER FOR ECONOMIC AFFAIRS AND FINANCE ( PARIS ) ( 1974 ) 2 ECR 1383 ) AND IN ITS JUDGMENT OF 29 MARCH 1979 IN CASE 231/78 TO WHICH REFERENCE HAS ALREADY BEEN MADE , 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 , SINCE THE COMMUNITY INSTITUTIONS ARE HENCEFORTH RESPONSIBLE FOR THE REQUIREMENTS OF THE MARKETS CONCERNED . THE EXPIRATION OF THE TIME-LIMITS FOR THE TRANSITION IMPLIES THEREFORE THAT THOSE MATTERS AND SECTORS SPECIFICALLY ASSIGNED TO THE COMMUNITY ARE 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 WHICH IS DESIGNED TO GUARANTEE THAT THE GENERAL PUBLIC INTEREST OF THE COMMUNITY IS PROTECTED .

8 CONSEQUENTLY 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 . NEVERTHELESS , THE FACT THAT THIS WORK 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 .

9 THE FRENCH REPUBLIC CANNOT JUSTIFY THE EXISTENCE OF SUCH A SYSTEM WITH THE ARGUMENT THAT THE UNITED KINGDOM , FOR ITS PART , HAS MAINTAINED A NATIONAL ORGANIZATION OF THE MARKET IN THE SAME SECTOR . IF THE FRENCH REPUBLIC IS OF THE OPINION THAT THAT SYSTEM CONTAINS FEATURES WHICH ARE INCOMPATIBLE WITH COMMUNITY LAW IT HAS THE OPPORTUNITY TO TAKE ACTION , 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 .

10 THE COURT MUST THEREFORE CONCLUDE THAT THE NATIONAL ORGANIZATION OF THE MARKET IN MUTTON AND LAMB MAINTAINED BY THE FRENCH AUTHORITIES IS INCOMPATIBLE WITH THE TREATY INASMUCH AS IT INCLUDES THE FIXING OF A THRESHOLD PRICE PROTECTED BY A SYSTEM OF IMPORT BANS AND THE LEVYING OF A DUE ON IMPORTS OF MUTTON AND LAMB COMING FROM ANOTHER MEMBER STATE . IT SHOULD BE EMPHASIZED THAT THIS FINDING DOES NOT PREVENT THE FRENCH AUTHORITIES FROM ADOPTING , UNTIL A COMMON ORGANIZATION OF THE MARKET IS ESTABLISHED , ANY MEASURE GRANTING AID FOR THE BENEFIT OF THE SECTOR UNDER CONSIDERATION , OF SUCH A KIND THAT IT IS COMPATIBLE WITH THE PROVISIONS OF THE TREATY .

11 CONSEQUENTLY IT FOLLOWS THAT BY CONTINUING AFTER 1 JANUARY 1978 TO APPLY ITS RESTRICTIVE NATIONAL SYSTEM TO THE IMPORTATION OF MUTTON AND LAMB FROM THE UNITED KINGDOM THE FRENCH REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 12 AND 30 OF THE EEC TREATY .

COSTS

12 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS

THE COURT

HEREBY :

1 . DECLARES THAT BY CONTINUING AFTER 1 JANUARY 1978 TO APPLY ITS RESTRICTIVE NATIONAL SYSTEM TO THE IMPORTATION OF MUTTON AND LAMB FROM THE UNITED KINGDOM THE FRENCH REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLES 12 AND 30 OF THE EEC TREATY ;

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .