JUDGMENT OF 19. 12. 1961-CASE 7/61 COMMISSION v ITALY

In Case 7/61

THE COURT composed of: A. M. Dormer, President, O. Riese and J. Rueff, Presidents of Chambers, L. Delvaux (Rapporteur), Ch. L. Hammes, R. Rossi and N. Catalano, Judges, Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Conclusions of the parties

II- Facts

III— Submissions and arguments of the parties

A — Admissibility

B — The substance of the case

1. Failure to fulfil the obligations imposed by Article 31 of the EEC Treaty

2. Failure to observe the provisions of the EEC Treaty concerning protective clauses

3. The conclusions in the application no longer have any purpose

IV — Procedure

Grounds of judgment

A — The purpose of the action

B — Admissibility

C — The substance of the case

D — Costs

I —. Conclusions of the parties

(a). Invite the Commission to provide details of the terms, the arguments and the outcome of the authorized contacts and discussions between the Commission and the Italian Government referred to in this case;

(b). invite the Commission to lodge with the Court originals or copies of all correspondence between the parties from 1 March 1961 to the present, relating to the provisions mentioned in this case and to the opinion of 21 December 1960 which gave rise to this action, including the communications of the Italian Government to the Commission as well as those of the Commission to the Italian Government;

(c). in the event of the Commission's refusing to carry out the order of the Court relating to points (a) and (b) above, order such other means of inquiry as it finds expedient in this case, including the laying down of a period of time for the lodging of a written statement of defence dealing with the new situation thus created.

II-. Facts

III—. Submissions and arguments of the parties

A —. Admissibility

(1). Article 169 of the EEC Treaty provides that when a State is considered to have failed to fulfil an obligation under the Treaty, the Commission is under an obligation to deliver a reasoned opinion on the matter. It is the defendant's contention that the Commission's letter dated 21 December 1960 cannot be considered as a reasoned opinion. Indeed, this letter goes no further than to point out the provisional measures taken by the Italian Government, and the subsequent extensions of them, and to state that, since the measures concerned certain liberalized and consolidated products, Italy had failed to fulfil the obligation imposed by Article 31 of the EEC Treaty to refrain from introducing between Member States any new quantitative restrictions or measures having equivalent effect. In order to deliver a reasoned opinion, the Commission should have ascertained the existence of the crisis situation on the market in pigmeat which the Italian Government had put forward; it should have examined whether, under the terms of the Treaty, the crisis justified the provisional measures taken.

(2). The defendant next raises the point that the contents of the Commission's letter of 21 December 1960 are contradictory. Indeed, the defendant submits that the Commission in its letter of 10 March 1961 informed the Italian Government that its application to authorize the suspension of the imports in question as a protective measure under Article 226 of the EEC Treaty was under examination and that it was waiting until the necessary information was gathered. It is therefore contradictory, in the defendant's submission, for the Commission to consider itself, as of 21 December 1960, able to assess the situation and deliver a reasoned opinion, whilst on 10 March 1961 expressly stating that it had not yet managed to collect all the material essential to the making of a decision.

(3). Thirdly, the defendant pleads that, even granting that the letter of 21 December 1960 constitutes the reasoned opinion required under Article 169, it is none the less still the case that the admissibility of an action before the Court of Justice is subject to the condition that the Member State to which the opinion was addressed should not have complied with it within the prescribed time. It is the defendant's contention that after the receipt of the abovementioned letter of 21 December 1960 and before the expiry of the prescribed period, the Italian Government submitted an application for protective measures on the basis of Article 226. It follows therefore that until such time as the Commission took a decision on that application, it could not maintain that the Italian Government had not complied with the opinion.

B —. The substance of the case

1. Failure to fulfil the obligations imposed by Article 31 of the EEC Treaty

(a). The defendant replies, first, that the measures taken are absolutely provisional and that when they expire normal conditions will be re-established on the market concerned. Moreover, the Italian Government's intention to re-establish imports of the products in question as soon as possible is demonstrated by the fact that the term of validity of the measures taken was fixed on several occasions for short periods. These measures are not therefore contrary to the first paragraph of Article 31.

(b). The defendant replies, secondly, that there were hardly any other means than those used to remedy the artificially low prices prevailing in the sector in question. In particular, it was not possible to adopt minimum prices, since the European Economic Community has not yet established the general conditions which must prevail in order to implement this system.

2. Failure to observe the provisions of the EEC Treaty concerning protective clauses

(a). The defendant replies, first, that it is incorrect that its application to take protective measures under Article 226 of the EEC Treaty was not introduced until 5 January 1961. It avers that, in stressing the critical situation in the sector concerned on 20 June 1976, the Italian Government applied on that date to the Commission to examine the provisional measures which had been adopted. In the defendant's contention, it was not necessary to refer expressly to Article 226 since that article does not require any particular formality and goes no further than to provide that in such a case the Commission cannot act on its own authority, but only on the application of the State concerned.

(b). The defendant replies, secondly, that according to the general principles of public law in force in every State, the State may adopt such emergency measures as it deems necessary when events arise which demand an immediate decision and cannot be dealt with otherwise. The Treaty of Rome did not exclude the possibility of interventions of this kind by Member States, but it did require that they should be followed as soon as possible by a communication to the Commission and an application to it to decide definitive long-term measures within the framework of Article 226. The Italian Government complied with these principles when confronted with the crisis concerning a sector of its economy. It cannot therefore be claimed that it conducted itself in a manner conflicting with the EEC Treaty.

3. The conclusions in the application no longer have any purpose

IV —. Procedure

A —. The purpose of the action

B —. Admissibility

(a). The first consists in maintaining that the Commission's letter of 21 December 1960 did not constitute a reasoned opinion within the meaning of Article 169 of the Treaty, owing to the fact that it did not examine the pertinence of the arguments advanced by the Italian Government as to the existence and seriousness of the crisis affecting the market in pigmeat and the necessity for the provisional measures decided upon to bring it to an end.

(b). The defendant maintains, secondly, that there is a contradiction between the attitude of the Commission at the date of the reasoned opinion, 21 December 1960, when it considered itself able to appraise the situation and deliver a reasoned opinion, and its attitude at the date of its reply to the application for putting protective measures into effect, 10 March 1961, when it stated that it was waiting for the information necessary to decide on the application.

(c). The defendant maintains, thirdly, that an action under the second paragraph of Article 169 is admissible only if the State concerned has not complied with the reasoned opinion, and that the defendant did so comply by submitting to the Commission on 5 January 1961, before the expiry of the period stipulated, an application for putting protective measures into effect based on Article 226.

C —. The substance of the case

(a). The defendant raises, first, the provisional nature of the measures adopted. It asserts that its intention to re-establish freedom for imports of the products concerned as quickly as possible is demonstrated by the fact that the term of validity of the suspension measures was renewed on several occasions, each time for a short period only.

(b). The defendant maintains, secondly, that Article 226 relating to protective measures applies in the present case and that the Commission should have decided on the matter, although it had not been formally invited to do so before 5 January 1961.

(c). The defendant maintains, thirdly, that it had no other means than the provisional suspension of imports at its disposal to remedy the aritificially low prices prevailing in the pigmeat sector. Moreover, the general principles of public law authorize every State, in an emergency, to take such provisional measures as are necessary to remedy serious occurrences.

(d). Finally, the defendant relies on Article 36 of the Treaty, which authorizes in particular prohibitions on imports justified on grounds of public policy. In the defendant's submission, when the problem was brought before the Commission, it should have inquired spontaneously whether Article 36 was applicable in this case.

D —. Costs

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 30 to 34, 36, 169, 171 and 226 of the Treaty establishing the European Economic Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Economic Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT hereby declares this case admissible and

1 Rules that the Italian Government, by provisionally suspending imports of the products concerned from Member States, failed to fulfil the obligation laid down in the first paragraph of Article 31 of the Treaty;

2 Orders the defendant to pay the costs.